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37.6.1 Indemnification for Breach of Agreement

Any breach by a Party to this Agreement of any obligation provided for in this Agreement, shall entitle the Party aggrieved by the breach to be indemnified by the defaulting Party in an amount equal to the damage suffered by the aggrieved Party. Any Party, in the event of such breach, may retain as a set-off any amounts it owes to the Party in breach of Taxes and Duties or for any other purpose, including any amounts collected or withheld from third parties for the other Party pursuant to any Applicable Law or agreement.

37.6.2 Indemnification of the State by Company

The Company shall at all times indemnify and hold harmless the State and its officers and agents from all claims and liabilities for death or injury to persons or damage to property from any cause whatsoever arising out of Mining Operations to the extent that the same arises from its failure to comply with any Applicable Law to which it is subject or the terms of this Agreement.

Example 1
Indemnity
31. The Company shall indemnify and keep indemnified the State and its servants, agents and contractors in respect of all actions, suits, claims, demands or costs of third parties arising out of or in connection with any work carried out by or on behalf of the Company pursuant to this Agreement or relating to its activities hereunder or arising out of or in connection with the construction maintenance or use by the Company or its servants, agents, contractors or assignees of the Company’s works or services the subject of this Agreement or the plant, apparatus or equipment installed in connection therewith PROVIDED THAT subject to the provisions of any other relevant Act such indemnity shall not apply in circumstances where the State or its servants, agents, or contractors are negligent in carrying out work for the Company pursuant to this Agreement.

Example 2
13.1 Indemnification by COMPANY.
Subject to Section 13.4, COMPANY shall defend, indemnify and hold harmless THE STATE and their [its] directors, officers, employees and agents (each a “Government Indemnified Party”) against all Losses to the extent that such Losses are sustained or incurred by a Government Indemnified Party relating to, resulting from, arising out of or otherwise by virtue of:

(a) Any misrepresentation or breach of a representation or warranty made herein by COMPANY;
(b) Non-compliance with or breach by COMPANY of any of the covenants or agreements contained in this Agreement to be performed by COMPANY;
(c) The conduct by or on behalf of COMPANY of the Evaluative Activities;
(d) Environmental Conditions to the extent such conditions result from or are adversely affected by COMPANY’s activities;
(e) Subject to Section 13.2(f), the presence, release, disposal or the threat of a release or disposal of any Hazardous Substance other than in compliance with Law or this Agreement in connection with the Project, except as the same is or results from an Historic Environmental Matter, unless, and then to the extent that, COMPANY has assumed responsibility for such Historic Environmental Matter pursuant to Section 11.2;
(f) Subject to Section 13.2(f), the failure, after the Project Notice Date, to promptly undertake and diligently pursue to completion all necessary, appropriate and legally authorized investigative, containment, removal, clean-up and other remedial actions with respect to a release or the threat of a release other than in compliance with Law or this Agreement of any Hazardous Substance and other than any release or threat of a release arising from or related to an Historic Environmental Matter unless, and then only to the extent that, COMPANY has assumed responsibility for such Historic Environmental Matter pursuant to Section 11.2;
(g) Human exposure to any Hazardous Substance, noises, vibrations or nuisance of whatever kind to the extent the same arise from the care, operation or maintenance of the Mine by or for COMPANY, and not from any Historic Environmental Matter, unless (and only to the extent that) the actions of COMPANY shall have adversely changed such Historic Environmental Matter;
(h) Subject to Section 11.8(a), a violation of any Law by COMPANY, including without limitation any applicable Environmental Law, or the Environmental and Social Policies and Guidelines;
(i) The remediation of Historic Environmental Matters for which COMPANY has assumed responsibility as provided in Section 11.2; and
(j) All Losses against which such Government Indemnified Party would have been insured against as an additional insured pursuant to Section 6.9(a) in the event COMPANY undertakes to self-insure with respect to the risk of such Losses pursuant to Section 6.9(b).

13.2 Indemnification by THE STATE.
Subject to Section 13.4, the STATE shall defend, indemnify and hold harmless COMPANY, its Affiliates, and its and their directors, officers, employees and agents (each a “COMPANY Indemnified Party”) against all Losses to the extent that such Losses are sustained or incurred by COMPANY relating to, resulting from, arising out of or otherwise by virtue of:

(a) Any misrepresentation or breach of a representation or warranty made herein by any of the Government Parties;
(b) Non-compliance with or breach by of the Government Parties of any of the covenants or agreements contained in this Agreement to be performed by THE STATE;
(c) Operation of or at the Mine that was:

(i) Not conducted by COMPANY; and
(ii) Conducted prior to the Project Notice Date;

(d) Subject to Section 13.2(f), existing facilities previously used in connection with the Mine, except for Historic Environmental Matters for which, and to the extent that, responsibility has been assumed by COMPANY pursuant to Section 11.2;
(e) Subject to Section 13.2(f), Historic Environmental Matters and, if remediation of such Historic Environmental Matter shall have been undertaken by the STATE, such remediated condition, except for Historic Environmental Matters for which, and to the extent that, responsibility has been assumed by COMPANY pursuant to Section 11.2;
(f) Notwithstanding any assumption by COMPANY of the Management or remediation of, or any other responsibility for, any Historic Environmental Matter pursuant to this Agreement, the death of or injury to any person, damage to any property or any other Loss or harm arising out of or relating in any way to: (i) the operation of the Mine or any activities at the Mine prior to the Project Notice Date, (other than Operations or activities conducted by or on behalf of COMPANY or its Affiliates) or (ii) any Historic Environmental Matter, including in all cases constitutional claims, claims relating to the relocation of people, the expropriation of property, loss of enjoyment, use or value of property, damage to natural resources, business loss or interruption, pollution or contamination of air, surface or ground water or soils, toxic tort claims (including claims under the Civil Code), and private or public health claims arising from or related to any Historic Environmental Matter (collectively, “Third Party Liability”); and
(g) Any claim, demand or proceeding by or on behalf of any consultant to [any of] THE STATE arising out or relating in any way to any payment made by COMPANY pursuant to Section 3.3.

13.3 Indemnification Procedure.

(a) If a Government Indemnified Party or a COMPANY Indemnified Party (an “Indemnified Party”) shall elect to claim a right to indemnification under this Agreement, the Indemnified Party shall give prompt Notice to the Party from which the Indemnified Party seeks indemnification (the “Indemnifying Party”) of the nature of the event, matter or proceedings in connection with which the Indemnified Party would be entitled to claim indemnification from the Indemnifying Party under this Agreement (“Indemnifiable Claim”), which Notice shall set forth the nature of the Indemnifiable Claim and the factual basis therefor.
(b) The respective obligations and liabilities of the Parties regarding Indemnifiable Claims resulting from claims made by Third Parties (“Third Party Claims”) shall be subject to the following terms and conditions:

(i) The Indemnified Party shall give the Indemnifying Party prompt Notice of any Third Party Claims. If the Indemnified Party fails to give such prompt Notice, the Indemnifying Party shall be relieved of its indemnification obligations only to the extent that the Indemnifying Party has been actually prejudiced by the delay.
(ii) Upon Notice from the Indemnified Party, the Indemnifying Party may, but shall not be required to, assume the defense of any such Third Party Claims, including their compromise or settlement, in which the outcome would give rise to a claim for indemnification hereunder, and the Indemnifying Party shall pay all reasonable costs and expenses incurred by it in connection therewith and shall be fully responsible for the outcome thereof. The Indemnifying Party shall give Notice to the Indemnified Party as to its intention to assume the defense of any such Third Party Claims within thirty (30) Days after the date of receipt of the Indemnified Party’s Notice in respect of such Third Party Claims. No compromise or settlement in respect of any Third Party Claims may be effected by the Indemnifying Party without the Indemnified Party’s prior consent (which consent shall not be unreasonably withheld) unless the sole relief is monetary damages that are to be paid in full by the Indemnifying Party and such monetary damages are fully paid by the Indemnifying Party. The Indemnifying Party shall have no liability with respect to any compromise or settlement thereof effected without its prior consent (which consent shall not be unreasonably withheld).
(iii) If the Indemnifying Party does not, within thirty (30) Days after the Indemnified Party’s Notice is given, give Notice to the Indemnified Party of its assumption of the defense of the Third Party Claims, the Indemnifying Party shall be deemed to have waived its rights to control the defense thereof; provided, however, that the Indemnifying Party shall be entitled to participate, at its own cost and expense, in the defense of such Third Party Claims and the Indemnified Party shall fully cooperate with the Indemnifying Party in respect of the defense of such Third Party Claims. If the Indemnifying Party assumes the defense of any Third Party Claims, it shall not be responsible or liable for any costs or expenses of legal counsel incurred by the Indemnified Party in connection with the Indemnified Party’s participation in the defense thereof unless agreed to in advance by such Indemnifying Party. If the Indemnified Party assumes the defense of any Third Party Claims n accordance with this Section 13.3(b), then the Indemnifying Party shall pay all reasonable costs and expenses of such defense.

13.4 Limitations on Liability.

(a) Notwithstanding any other provision of this Agreement, except as provided in Section 7.15, in no event shall any Party be liable to any other Party for any special, punitive, or incidental or consequential damages.
(b) In no event shall the STATE be liable for any Environmental Condition that results from the actions of COMPANY.
(c) Each of the Parties shall assume the risk of injuries to its own employees, agents and contractors, except for cases of willful misconduct or gross negligence of another Party.

Example 3
19.8 Indemnification of the Concessionaire and the Operating Company by the Government. The Government shall at all times indemnify and hold harmless each of the Concessionaire and the Operating Company from all claims and liabilities arising out of a breach of the covenant set forth in Section 19.6 or a breach of its representation and warranty set forth in Section 21.2(b).

[…]

20.1 Indemnification of the Government by the Concessionaire and the Operating Company. Each of the Concessionaire and the Operating Company shall at all times indemnify and hold harmless the Government and its officers and agents from all claims and liabilities for death or injury to Persons or damage to property from any cause whatsoever arising out of its Operations (except liability arising or in connection with the environmental or safety hazard existing before the handover of the relevant assets by the Government to the Concessionaire or Operating Company) or as a result of its failure to comply with any Law to which it is subject.

REFER TO MMDA DISCLAIMERS AND MMDA USER’S GUIDE
PRIOR TO ANY USE OF THIS DOCUMENT.

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