Common use of SUBSTANTIVE TERMS AND CONDITIONS Clause in Contracts

SUBSTANTIVE TERMS AND CONDITIONS. 1. To the fullest extent allowed by law, the Members each agree to defend, indemnify, and/or hold harmless the other Members (and their respective directors, officers and employees) from any claim arising from their actual or alleged negligent, reckless, or intentional act, error, or omission in the performance or nonperformance of their express or implied duties or obligations imposed by a Contract or governing law or regulation that has (a) actually or allegedly caused harm, damage or injury to a third party, or (b) actually caused harm, damage or injury to the real, personal, intellectual, or financial property or interests of another Member. Upon the acceptance of a tender of defense under this provision, the indemnifying Member shall have a right to appoint counsel, manage the defense of the claim, and determine the extent to which a claim should be settled, all such decisions to be conducted within the indemnifying Member’s sound discretion. 2. Each Member shall affirmatively undertake reasonable or necessary efforts to transfer the risks encompassed by this Master Agreement, and these indemnity obligations, to third parties, including vendors, agents, contractors, or subcontractors (“Agents”) of a Member who may have direct or vicarious liability for the acts or omissions of its Agents who have actually or allegedly caused an injury producing event or claim. All Members shall also proactively seek to minimize risks in advance of a claim or loss, and to proactively engage in all reasonable or necessary steps after a claim occurs to minimize or reduce defense and/or indemnity exposures. 3. Should a claimant allege that two or more Members were at fault for causing harm, damage or injury included within the defense and indemnity provisions above, in the absence of an irreconcilable and non- waivable conflict of interest, the Members (for themselves and their respective directors, officers, and employees) agree to be jointly represented by a single defense counsel, with all defense fees and costs equally allocated between the Members. If an irreconcilable and non-waivable conflict of interest exists, each Member Agency shall be responsible for its own attorneys’ fees, costs, and expenses. Whether through settlement or judgment, each Member shall be solely and separately responsible for any apportioned damages arising from its negligent, reckless, or intentional act. 4. If one or more Members named in a claim are covered by a relevant NBSIA coverage program, NBSIA shall extend coverage to both Members (and their respective directors, officers and employees) subject to the terms and conditions of the then-existing coverage agreement, at which time NBSIA shall appoint counsel, manage the defense of the claim in keeping with the standards set forth above, and, in the case of settlement, determine the apportioned share of liability or responsibility of each Member. Each Member shall be responsible for any applicable deductible unless NBSIA determines that the sole cause of the claim is the actual or alleged acts of a single Member, with a deductible then owed by the Member whose fault is at issue in the claim. If the Contract involves the sharing of individuals on a joint employer basis under governing legal principles, both Members’ workers’ compensation coverage benefits shall be deemed implicated other Member’s compensation coverage agreement. 5. If one or more Members are not covered by the same NBSIA coverage program, to the extent of a Member’s defense and/or indemnity obligations set forth above, each Member shall be deemed an “additional insured,” or “additional covered party” under the other Member Agency’s Coverage Providers’ liability and property coverage agreement(s), subject to all terms, conditions, limitations, and obligations of such liability coverage agreement (or any available excess coverage agreements), with the Member not participating in the NBSIA coverage program in question required to obtain an “additional insured,” or “additional covered party” endorsement or agreement from its separate coverage provider in order to ensure reciprocity. If such an endorsement is not issued, for any reason, the nonparticipating Member shall be financially obligated to provide the financial benefits that would have been due and owing under the other coverage program if such an endorsement would have been issued. These rights to coverage consideration shall exist under all primary and excess coverage agreements or insurance policies available to the Member Agencies, up to the limits of liability, but this Master Agreement shall not otherwise enlarge the scope of coverage rights or benefits available under a Coverage Provider’s governing coverage documents or agreements. 6. The provisions of this Master Agreement are expected and intended to avoid claims of subrogation, contribution, or indemnity, with rights of subrogation deemed waived and released in favor of the allocation and claim management provisions contained herein, although nothing set forth in this Master Agreement is intended to affect any statutory presumptions or limitations imposed by any law or regulation relating to automobile insurance obligations (e.g., Vehicle Code Section 11580.9). 7. Upon notice of a claim or potential claim to a Member Agency, the Member Agency shall promptly give notice (no later than any timeframe imposed by NBSIA’s then-existing coverage agreement) of the claim or potential claim to NBSIA and to the chief business official of any other actually or potentially involved Member. NBSIA shall, in keeping with its obligations under its coverage agreements, assume claim management responsibilities if coverage actually or potentially exists, and coordinate responses to the claim or potential claim, including determinations of the existence of joint/separate defense obligations.