Indemnification Unavailability Clause Samples
The Indemnification Unavailability clause defines what happens if indemnification is not available to a party under the agreement. Typically, this clause outlines alternative remedies or limitations on liability when indemnification cannot be provided due to legal restrictions, unenforceability, or other barriers. For example, if a court finds that indemnification for certain claims is not permitted by law, the clause may specify that the parties will seek to provide the closest permissible remedy or adjust their obligations accordingly. Its core function is to ensure that the parties have a clear plan for addressing situations where indemnification cannot be enforced, thereby reducing uncertainty and potential disputes.
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Indemnification Unavailability. If the indemnification provided for in this Section 1.5 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any loss, liability, claim, damage, or expense referred to in this Section 1.5, then the Indemnifying Party, instead of indemnifying such Indemnified Party under Section 1.5(a) or Section 1.5(b), will contribute to the amount paid or payable by such Indemnified Party as a result of such loss, liability, claim, damage, or expense in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party, on the one hand, and of the Indemnified Party, on the other hand, in connection with the statements or omissions that resulted in such loss, liability, claim, damage, or expense as well as any other relevant equitable considerations; provided, however, that in no event will any contribution by a Holder under this Section 1.5(d) exceed the net proceeds (as defined in Section 1.5(b)). The relative fault of the Indemnifying Party and of the Indemnified Party will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the Parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such statement or omission.