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Indemnity Agreement for a Construction Project

Introduction
Definitions
Scope of Indemnity
Obligations of the Indemnifier
Obligations of the Indemnified
Claims and Notification
Defense and Settlement of Claims
Exclusions and Limitations
Duration of Indemnity
Governing Law and Dispute Resolution
Miscellaneous Provisions
Signatures

1. Introduction

This Indemnity Agreement (the "Agreement") is made and entered into on [Date], by and between:

Indemnifier: [Indemnifier's Full Name] [Indemnifier's Address] [City, State, ZIP Code] [Country]

Indemnified: [Indemnified's Full Name] [Indemnified's Address] [City, State, ZIP Code] [Country]

WHEREAS, the Indemnifier and the Indemnified are parties to a construction project agreement dated [Date] (the "Construction Agreement") for the construction of [Project Description] located at [Project Location] (the "Project");

AND WHEREAS, the Indemnifier has agreed to indemnify the Indemnified against certain liabilities and claims arising out of or in connection with the Project;

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows:

2. Definitions

For the purposes of this Agreement, the following terms shall have the meanings set forth below:

"Claim" means any claim, demand, action, suit, or proceeding brought against the Indemnified.
"Indemnified Parties" means the Indemnified and its officers, directors, employees, agents, and representatives.
"Losses" means any and all losses, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) incurred by the Indemnified Parties.

3. Scope of Indemnity

The Indemnifier agrees to indemnify, defend, and hold harmless the Indemnified Parties from and against any and all Claims and Losses arising out of or in connection with:

Any breach by the Indemnifier of its obligations under the Construction Agreement;
Any negligence, gross negligence, or willful misconduct by the Indemnifier or its subcontractors, agents, or employees in the performance of the Construction Agreement;
Any injury to persons (including death) or damage to property arising out of or in connection with the performance of the Construction Agreement by the Indemnifier or its subcontractors, agents, or employees.

4. Obligations of the Indemnifier

The Indemnifier shall:

Promptly notify the Indemnified of any Claim or potential Claim;
Take all necessary steps to defend the Indemnified against any Claim, including retaining legal counsel reasonably acceptable to the Indemnified;
Pay all costs and expenses incurred in connection with the defense of any Claim, including reasonable legal fees and expenses;
Reimburse the Indemnified for any Losses incurred as a result of any Claim.

5. Obligations of the Indemnified

The Indemnified shall:

Promptly notify the Indemnifier of any Claim or potential Claim;
Provide the Indemnifier with all reasonable assistance in the defense of any Claim, including providing access to relevant documents and information;
Not settle or compromise any Claim without the prior written consent of the Indemnifier, which consent shall not be unreasonably withheld.

6. Claims and Notification

In the event of a Claim, the Indemnified shall:

Provide written notice to the Indemnifier as soon as practicable, but in no event later than [Number] days after becoming aware of the Claim;
Include in the notice a description of the Claim and the nature of the Losses incurred or expected to be incurred.

7. Defense and Settlement of Claims

The Indemnifier shall have the right to:

Assume the defense of any Claim with legal counsel reasonably acceptable to the Indemnified;
Settle or compromise any Claim, provided that the Indemnifier shall not settle or compromise any Claim without the prior written consent of the Indemnified, which consent shall not be unreasonably withheld.

8. Exclusions and Limitations

The indemnity provided under this Agreement shall not apply to:

Any Claim or Losses arising out of the sole negligence or willful misconduct of the Indemnified;
Any Claim or Losses arising out of the failure of the Indemnified to comply with applicable laws, regulations, or permits.

9. Duration of Indemnity

The indemnity provided under this Agreement shall continue in full force and effect for a period of [Number] years following the completion of the Project or the termination of the Construction Agreement, whichever is later.

10. Governing Law and Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of the Republic of Kenya. Any disputes arising out of or in connection with this Agreement shall be resolved through:

Negotiation: The parties shall first attempt to resolve the dispute through good faith negotiations.
Mediation: If the dispute cannot be resolved through negotiation, the parties shall attempt to resolve the dispute through mediation in accordance with the rules of the [Mediation Institution].
Arbitration: If the dispute cannot be resolved through mediation, the dispute shall be finally resolved by arbitration in accordance with the rules of the [Arbitration Institution]. The arbitration shall be conducted in [City], Kenya, and the language of the arbitration shall be English.

11. Miscellaneous Provisions

Entire Agreement: This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral, relating to such subject matter.
Amendments: This Agreement may not be amended or modified except by a written instrument signed by both parties.
Severability: If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.
Waiver: No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the party against whom the waiver is sought to be enforced.
Assignment: Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party.

12. Signatures

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

Indemnifier:

[Indemnifier's Full Name]
[Title]
[Company Name]

Indemnified:

[Indemnified's Full Name]
[Title]
[Company Name]

Conclusion

This Indemnity Agreement is designed to protect the Indemnified from potential liabilities and claims arising from the construction project. It outlines the responsibilities of both parties and provides a clear framework for handling claims and disputes. It is essential to tailor the agreement to the specific circumstances of the project and to seek legal advice to ensure that it meets all legal requirements and adequately protects the interests of the parties involved.

TLDR

An Indemnity Agreement for a construction project in Kenya outlines the responsibilities of the Indemnifier and the Indemnified, providing protection against claims and losses arising from the project. It includes provisions for claims notification, defense, and settlement, and is governed by Kenyan law.

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