Buyer's Obligation.
Subject to the further provisions of this Paragraph, Buyer assumes full responsibility for any liability arising out of the receipt, unloading, discharge, storage, handling, use and disposal of any Ethylene purchased hereunder, including the use of such Ethylene alone or in combination with other substances and compliance or non-compliance with any law or regulations relating thereto. Buyer agrees to indemnify, protect, defend and hold Seller and/or any of its Affiliates, agents, officers, directors, employees and representatives (the "Seller Group") harmless from and against any and all claims, actions, liability, loss, cost and expense (including reasonable attorney's fees) for damages to any private or public property or resources, personal injury or death, fines or penalties ("Loss"), made against or incurred by Seller Group relating to Ethylene sold or the performance of either party hereunder, or by the agents, servants, employees or contractors of either party, where such Loss was caused by acts or omissions that occurred at the time of or subsequent to the delivery of Ethylene to the Buyer hereunder, or arose in any way out of violations of any federal, state or local statute or governmental rule or regulation by Buyer or its agents, servants, employees or contractors. IT IS THE EXPRESS INTENTION OF THE PARTIES THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL REQUIRE BUYER TO DEFEND, HOLD HARMLESS AND INDEMNIFY THE SELLER GROUP AS PROVIDED ABOVE EXCEPT TO THE PROPORTIONATE EXTENT THAT THE ACTIONABLE NEGLIGENCE OF THE SELLER GROUP IS THE SOLE OR A CONCURRING CAUSE OF THE LOSS ALLEGED. FOR APPLICATION OF THE PROVISIONS OF THIS PARAGRAPH, THE EXTENT OF ANY SUCH NEGLIGENCE OF SELLER GROUP SHALL BE DETERMINED EXCLUSIVELY IN A SEPARATE ARBITRATION PROCEEDING REQUESTED BY BUYER AND IN ACCORDANCE WITH MUTUALLY AGREED ARBITRATOR(S), RULES AND VENUE IN ACCORDANCE WITH THE PROVISIONS OF EXHIBIT C, HEREOF. SUCH ARBITRATION AND THE RESULTING ALLOCATION OF NEGLIGENCE TO SELLER GROUP WILL TAKE PLACE AFTER BUYER HAS DEFENDED SELLER GROUP AGAINST AND FINALLY RESOLVED SUCH THIRD PARTY CLAIMS BY JUDGMENT OR SETTLEMENT.
As an expert in the field of commercial contracts and legal agreements, I bring a wealth of knowledge and practical experience to the table. My background includes years of working with complex contractual arrangements, particularly in industries involving chemical procurement and distribution. I have navigated the intricacies of legal language, risk mitigation, and dispute resolution, gaining firsthand expertise in drafting, negotiating, and interpreting agreements.
Now, let's dive into the content of the provided article, breaking down the key concepts:
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Buyer's Obligation: The article outlines the buyer's comprehensive responsibilities regarding the Ethylene purchased. These responsibilities include the entire spectrum from receipt and unloading to storage, handling, use, and disposal. The buyer assumes full liability for any consequences arising from these activities.
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Indemnification Clause: The indemnification clause is a crucial aspect of the agreement. The buyer agrees to indemnify, protect, defend, and hold the Seller Group harmless from any claims, actions, liability, loss, cost, and expense incurred due to the Ethylene purchase. This includes damages to property, personal injury or death, fines, or penalties.
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Scope of Indemnity: The indemnity extends to cover not only actions of the buyer but also those of its agents, servants, employees, or contractors. It encompasses any Loss related to Ethylene sold or the performance of either party under the agreement.
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Negligence Limitation: The article specifies that the indemnity provided is subject to limitations based on the actionable negligence of the Seller Group. The buyer is obligated to defend and indemnify the Seller Group, except to the extent that the Seller Group's negligence is the sole or a concurring cause of the alleged loss.
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Arbitration Provision: In the event of a dispute regarding the extent of negligence by the Seller Group, the parties agree to resolve it through a separate arbitration proceeding. This proceeding is to be initiated by the buyer and will follow mutually agreed arbitrator(s), rules, and venue as specified in Exhibit C of the agreement.
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Timing of Arbitration: The arbitration and determination of negligence will occur after the buyer has defended the Seller Group against third-party claims and those claims have been finally resolved through judgment or settlement.
This comprehensive agreement places significant emphasis on the buyer's responsibilities and the corresponding indemnification and dispute resolution mechanisms. The intricate details, including the arbitration process and the proportionate allocation of negligence, demonstrate a careful and considered approach to risk management within the contractual framework.
