Common use of Duties and indemnity Clause in Contracts

Duties and indemnity. 6.1 Subject to the Escrow Agent’s receipt of the Escrow Funds paid by the Buyers pursuant to the Agreement, the Escrow Agent shall hold such amounts on the terms and conditions of this Escrow Agreement. 6.2 Payments made by the Escrow Agent to the Sellers’ or Buyers’ accounts as set forth above shall be deemed to be a full and adequate discharge by the Escrow Agent of its obligations to make or procure payments under the terms of this Escrow Agreement. 6.3 The Escrow Agent may assume that any statement made in any written instruction given pursuant to this Escrow Agreement is correct and it shall not be liable for any loss occasioned to any party by virtue of any such statement being incorrect. The Escrow Agent shall be entitled to rely on any such statement and on any communication reasonably believed by it to be genuine and to have been signed by persons duly authorised to do so. 6.4 If the Escrow Agent receives: (a) two communications both appearing to be in conformity with this Escrow Agreement which, in its opinion, conflict with one another; or (b) any communication purporting to conform with this Escrow Agreement which, in its opinion, fails so to conform, the Escrow Agent shall not be obliged to take any action whatsoever until all parties jointly instruct the Escrow Agent in writing (signed by the authorised signatory of each party) in relation thereto. 6.5 The Escrow Agent undertakes to perform only such duties as are expressly set out in this Escrow Agreement. 6.6 The parties other than the Escrow Agent agree, except in respect of any liabilities resulting from the Escrow Agent’s own gross negligence, bad faith, fraud or wilful misconduct: (a) that the Escrow Agent will not be liable to any of them for; and (b) jointly and severally to indemnify and hold harmless the Escrow Agent against, any and all liabilities (including, without limitation, in respect of any bank charges) arising out of or in connection with this Escrow Agreement or the Escrow Account. 6.7 In consideration of the Escrow Agent’s agreement to hold and to deal with the Escrow Funds and the interest accruing thereon in accordance with this Escrow Agreement, each of the parties (other than the Escrow Agent) (together the Indemnitors): (a) agrees that the Escrow Agent’s only duty pursuant to this Escrow Agreement is to hold and to deal with the Escrow Funds and the interest accruing thereon and, save insofar as specified in this Escrow Agreement, the Escrow Agent owes no duty (whether of care or otherwise) to any Indemnitor; (b) agrees that the Escrow Agent’s obligations in relation to payment of the Escrow Funds in accordance with this Escrow Agreement shall be fully discharged when it, to the extent it is legally able to do so, has transferred the amounts of such payments to the appropriate accounts of the Buyers or Sellers (as the case may be) in accordance with this Escrow Agreement, whereupon the Escrow Agent shall be released in full from all undertakings and obligations undertaken by it under the terms of this Escrow Agreement with respect to such payments; (c) agrees that the Escrow Agent shall, not be, except in the case of any gross negligence, bad faith, fraud or wilful misconduct on its part: (i) in any circumstances, under any duty or obligation to check whether any notice or instruction, or any signature thereon, or the content thereof, is correct, genuine or valid or has been made on the correct basis and the Escrow Agent may rely conclusively upon any notice (including, for the avoidance of doubt, a facsimile of electronic version thereof) which it receives and believes to be genuine and the Escrow Agent may assume that the same has been properly signed by a duly authorised person (whether or not this is the case) without liability for the consequences of such reliance provided that the signature conforms prima facie with the specimen signature provided to the Escrow Agent and it shall be conclusively presumed in the Escrow Agent’s favour (but not, for the avoidance doubt, for purposes of any dispute between the Buyers and Sellers) that any amount stated to be due or payable in the same is, in fact, so due or payable; (ii) obliged to pay any monies to any person except to the extent of the Escrow Funds (and any interest accrued thereon) held by the Escrow Agent in the Escrow Account from time to time; (iii) held in any way responsible to account for any loss which any Indemnitor may incur as a result of anything which the Escrow Agent does or purports or omits to do in good faith in connection with this Escrow Agreement or any notice which the Escrow Agent receives and which it believes to be authorised under the terms of this Escrow Agreement or within its rights or powers under the terms of this Escrow Agreement, or as a result of anything which the Escrow Agent does or purports or omits to do in good faith (including in accordance with the advice of solicitors or legal counsel (who may be of the Escrow Agent’s own choosing), or as a result of any mistake of fact or error of judgement or for any acts or omissions of any kind; (iv) required to begin or defend any legal proceedings of any kind in connection with this Escrow Agreement and that the Escrow Agent is expressly authorised to comply with and obey all and any orders, judgements or decrees of any court or any liquidator or other insolvency practitioner having jurisdiction over any of the Escrow Funds and/or any of the parties hereto and in the event that the Escrow Agent shall obey or comply with any such order, judgement or decree the Escrow Agent shall not be liable to any person whatsoever for such compliance; and (d) undertakes, jointly and severally with each other Indemnitor, to indemnify and hold the Escrow Agent free and harmless from and against any and all claims, costs, (including any costs incurred pursuant to payment of the Escrow Funds into, or the transfer of all or part of the Escrow Funds out of, the Escrow Account and reasonable legal fees, including the Escrow Agent’s own legal costs using its usual charging rates for its solicitors), damages, expenses, losses and liabilities (other than arising out of the Escrow Agent’s gross negligence, bad faith, fraud or wilful misconduct) which may be brought against or imposed upon or incurred by the Escrow Agent in connection with its acting as escrow agent in relation to the Escrow Funds or any sum held or dealt with under the terms of this Escrow Agreement or which would not have been brought against, imposed upon or incurred by the Escrow Agent but for the Escrow Agent acting in such capacity under this Escrow Agreement, including any litigation or other proceeding of any kind connected with this Escrow Agreement or the arrangements contemplated thereby, whether or not the same arise as a consequence of any Indemnitor’s actions and whether brought by any Indemnitor or otherwise. (e) Notwithstanding the Escrow Agent’s other obligations and duties under this letter, the Escrow Agent may refrain from doing anything which would in its reasonable opinion: (i) be contrary to English law or any other relevant jurisdiction (including in any place where the Escrow Agent has an office or carries on the practice of law); (ii) be contrary to any requirement of any court of competent jurisdiction or any supervisory or regulatory authority; or (iii) otherwise render the Escrow Agent liable to any other person. (f) Each Indemnitor undertakes to each other and to the Escrow Agent to do, and to use reasonable efforts to procure that any necessary third party shall do, all such things, sign all such documents and give promptly all such notices as shall be required under this Escrow Agreement.