Terms and Conditions
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (the "Agreement") made as of the acceptance of this booking (the "Execution Date"),
BETWEEN:
Clay Baird of 624 Lydiard St north, 3350, Australia
(the "Indemnitee")
OF THE FIRST PART
And The Name and address of the appointment holder.
(the "Indemnifier")
OF THE SECOND PART
By booking an appointment the Indemnifier agrees to all conditions as laid out in this contract.
The Execution Date, is the day the appointment is made.
BACKGROUND:
1. The Indemnitee desires protection against any personal liability, claim, suit, action, loss, or
damage that may result from the Indemnitee's participation in the Service.
2. The Indemnifier wishes to minimise any hardship the Indemnitee might suffer as the result of
any personal liability, claim, suit, action, loss, or damage that may result from the
Indemnitee's participation in the Service.
IN CONSIDERATION and as a condition of the Indemnifier and the Indemnitee entering into this
Agreement and other valuable consideration, the receipt and sufficiency of which consideration is
acknowledged, the Indemnifier and the Indemnitee agree as follows:
Definitions
1. The following definitions apply in the Agreement:
a. "Service" means the following:
All equine related services, Including but not limited to; barefoot trimming corrective trimming
treatment of abscess, seedy toe, cushings and laminitis.
Basic horse handling and education including halter starting horses mules and
donkeys.
The horse owner will ensure that the horses are safe and in a safe environment free
from dangers that are suitable to perform the task.
b. "Expenses" means all costs incurred in the defense of any claim or action brought
against the Indemnitee including lawyers' fees.
c. "Notice of Claim" means a notice that has been provided by the Indemnitee to the
Indemnifier describing a claim or action that has or is being brought against the
Indemnitee by a Third Party.
d. "Notice of Indemnity" means a notice that has been provided by the Indemnitee to the
Indemnifier describing an amount owing under this Agreement by the Indemnifier to
the Indemnitee.
e. "Parties" means both the Indemnitee and the Indemnifier.
f. "Party" means either the Indemnitee or the Indemnifier.
g. "Third Party" means any person other than the Indemnifier and the Indemnitee.
Indemnification
2. The Indemnifier will hold harmless and indemnify the Indemnitee against any and all claims
and actions arising out of the participation of the Indemnitee in the Service, including,
without limitation, Expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with any liability, suit, action, loss, or damage arising or
resulting from the Indemnitee's participation in the Service, subject to the limits on
indemnification described in the section titled Exceptions to Indemnification. Where
prohibited by law, the above indemnification does not include indemnification of the
Indemnitee against a claim caused by the negligence or fault of the Indemnitee, its agent or
employee, or any third party under the control or supervision of the Indemnitee, other than
the Indemnifier or its agent, employee or subcontractors.
3. In the case of a criminal proceeding, the Indemnitee will not be indemnified by the
Indemnifier.
Exceptions to Indemnification
4. The Indemnitee will not be entitled to indemnification from the Indemnifier for any
Expenses, judgments, fines, settlements and other amounts incurred as the result of the
Indemnitee's participation in the Service where:
a. in the case of a civil claim, the Indemnitee did not act in good faith and in a reasonable
manner;
b. the actions or conduct of the Indemnitee constituted wilful misconduct or was
knowingly fraudulent or deliberately dishonest;
c. the Indemnitee will or has received payment under a valid and collectible insurance
policy or under a valid and enforceable indemnity clause, bylaw or agreement, except
where payment under this insurance policy, clause, bylaw or agreement is not
sufficient to fully indemnify the Indemnitee in which case the Indemnifier will be
responsible for any shortfall in payment received; or
d. an action or proceeding was initiated in whole or in part by the Indemnitee whether
alone or along with one or more other claimants unless the action or proceeding has
the written consent of the Indemnifier.
Notice of Claim
5. In the event of any claim or action, the Indemnitee will promptly provide the Indemnifier
with written notice of the claim or action and will notify the Indemnifier within five (5)
business days of the commencement of any legal proceedings relating to the claim or action.
The Indemnitee will provide the Indemnifier with all available information known to the
Indemnitee relating to the claim or action.
Authorisation of Indemnification
6. In any case where the Indemnitee requires indemnification, the Indemnifier will make the
determination of whether indemnification is appropriate having given consideration to the
terms described in the Exceptions to Indemnification section. If the Indemnitee disagrees
with the determination of the Indemnifier then the matter must be referred for review and
determination to independent legal counsel reasonably satisfactory to the Indemnitee. In all
cases the Indemnifier will bear all costs of any independent determination.
7. The Indemnifier will bear the burden of proving that indemnification is not appropriate.
8. The termination of any claim or action by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent will not, of itself, create a presumption that the
person did not act in good faith and in a reasonable manner.
Assumption of Defense
9. On being notified of any impending action or claim, the Indemnifier may, at its own
Expense, participate in the defense of any action or claim and may, alone or with any other
indemnifying party, assume the defense against the action or claim using counsel that are
reasonably satisfactory to the Indemnitee.
10. Once the Indemnifier has notified the Indemnitee of the intention to assume the defense, the
Indemnifier will no longer be liable to the Indemnitee for any further legal or other Expenses
subsequently incurred by the Indemnitee in relation to the defense of the claim. Once the
Indemnifier provides notice to the Indemnitee that the defense of claim has been assumed by
the Indemnifier, the Indemnitee may employ or continue to employ its own legal counsel
however any fees or Expenses incurred by the Indemnitee subsequent to the notice of
assumption of defense by the Indemnifier will be the sole responsibility of the Indemnitee.
Failure to Defend
11. If the Indemnifier elects not to assume the defense against the claim or action then the
Indemnitee may defend against the claim or action in any manner the Indemnitee deems
appropriate. The Indemnifier will promptly reimburse the Indemnitee for Expenses,
judgments, fines, settlements and any other amounts actually and reasonably incurred in
connection with the defense of the claim or action subject to the limits on indemnification
described in the section titled Exceptions to Indemnification.
Settlement and Consent of Indemnifier
12. The Indemnitee will not settle any claim or action without first obtaining the written consent
of the Indemnifier. The Indemnifier will not be liable for any amounts paid in settlement of
any claim or action where written consent of the Indemnifier was not first obtained. The
Indemnifier will not unreasonably withhold consent to any settlement.
Settlement and Consent of Indemnitee
13. The Indemnifier will not settle any claim or action without first obtaining the written consent
of the Indemnitee. The Indemnitee will not unreasonably withhold consent to any settlement.
Cooperation
14. The Indemnifier agrees to cooperate in good faith and use best efforts to ensure that the
Indemnitee is indemnified and reimbursed for any and all Expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred in connection with the
defense of any claim or action resulting from the participation of the Indemnitee in the
Service.
15. The Indemnitee agrees to cooperate in good faith and provide any and all information within
the Indemnitee's power as required for the defense of any claim or action and also to provide
any and all information within the Indemnitee's power as required to help in a determination
of indemnification as described under the Authorisation of Indemnification section.
Expenses
16. No costs, charges or Expenses for which indemnity will be sought under this Agreement may
be incurred without the Indemnifier's written consent. Any required consent must not be
unreasonably withheld.
17. All reasonable Expenses incurred by the Indemnitee to enforce this Agreement, and all costs
of defending any Third Party claims or actions brought against the Indemnitee under this
Agreement will be the sole responsibility of the Indemnifier subject to the limits on
indemnification described in the section titled Exceptions to Indemnification.
Advances of Expenses
18. At the written request of the Indemnitee, the Indemnifier will advance to the Indemnitee any
Expenses, including lawyers' fees, incurred by the Indemnitee in defending any action
brought against the Indemnitee. Where reasonable, and to minimise hardship to the
Indemnitee, advance payments may be made prior to the disposition of any claim.
19. The Indemnitee agrees to repay to the Indemnifier any advance payments on Expenses where
a determination is ultimately made that the Indemnitee is not entitled to indemnification for
reasons described under the Indemnification and the Exceptions to Indemnification sections.
Payment
20. All payments made by the Indemnifier to the Indemnitee will be made in full in immediately
available funds within sixty (60) days of receipt of Notice of Indemnity from the Indemnitee
and without deduction for any counterclaim, defense, recoupment, or set-off.
21. Any Notice of Indemnity sent by the Indemnitee to the Indemnifier must be made in writing
and contain a full listing of the items to be covered in the payment. Any payment made by
the Indemnifier to the Indemnitee will contain a listing of items covered under the payment.
Enforcement
22. If any right or remedy claimed by the Indemnitee under this Agreement is denied or is not
paid by the Indemnifier, or on its behalf, within sixty (60) days after a written Notice of
Indemnity has been submitted by the Indemnitee to the Indemnifier, the Indemnitee may then
bring suit against the Indemnifier to recover any unpaid amounts and if successful in whole
or in part, the Indemnitee will be entitled to be paid any and all costs related to resolving the
claim.
23. Where a determination as described under Authorisation of Indemnification concludes that
the Indemnitee's behaviour is not entitled to indemnification, this will not create a
presumption that the Indemnitee is not entitled to indemnification under this Agreement.
Insurance
24. The Indemnifier, at its sole discretion, will make the good faith determination whether or not
it is reasonable for the Indemnifier to obtain liability insurance against its potential liability in
protecting the Indemnitee under this Agreement. The Indemnifier will select an insurer with a
reliable reputation and, among other considerations, will weigh the costs of obtaining this
insurance coverage against the protection afforded by this coverage.
Duration
25. The rights and obligations of the Indemnitee and the Indemnifier under this Agreement will
continue:
a. so long as the Indemnitee is or will be subject to any possible claim or threatened,
pending or completed action, suit or proceeding, whether civil, arbitrational,
administrative or investigative that results from the participation of the Indemnitee in
the Service; or
b. until terminated by an agreement in writing signed by both the Indemnifier and the
Indemnitee.
Unlimited Indemnification
26. Under this Agreement, indemnification will be unlimited as to amount.
Full Release
27. Only payment and satisfaction in full of all amounts and charges payable under this
Agreement and the due performance and observance of all terms, covenants and conditions
of this Agreement will release the Indemnifier and the Indemnitee of their obligations under
this Agreement.
Further Action
28. No action or proceeding brought or instituted under this Agreement and no recovery from
that action or proceeding will be a bar or defense to any further action or proceeding which
may be brought under this Agreement by reason of any further failure in the performance and
observance of the terms, covenants and conditions of this Agreement.
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Subrogation
29. In the event that any indemnity payment is made under this Agreement, the Indemnifier will
be subrogated to the extent of this payment to all of the rights of recovery of the Indemnitee.
The Indemnitee will take all action required and provide all information necessary to secure
these rights and to fully enable the Indemnifier to take any action to enforce these rights in
the recovery of the indemnity payment.
Amendments
30. This Agreement may only be amended, terminated or cancelled by an instrument in writing,
signed by both the Indemnifier and the Indemnitee.
Assignment of Indemnifier Rights and Obligations
31. The rights and obligations of the Indemnifier as existing under this Agreement may not be
assigned, in whole or in part, without the prior written consent of the Indemnitee.
Assignment of Indemnitee Rights and Obligations
32. The rights and obligations of the Indemnitee as existing under this Agreement may not be
assigned, either in whole or in part, without the prior written consent of the Indemnifier.
Joint and Several Liability
33. If two or more persons act as Indemnifier in this Agreement or if the Indemnifier is a
partnership consisting of two or more partners, then the liability under this Agreement will be
joint and several for each co-Indemnifier.
Notices
34. Any notices or deliveries required in the performance of this Agreement will be deemed
completed when hand-delivered, delivered by agent, or seven (7) days after being placed in
the post, postage prepaid, to the Parties to this Agreement at the addresses contained in this
Agreement or as the Parties may later designate in writing.
Governing Law
35. This Agreement will be governed by and construed in accordance with the laws of the State
of Victoria.
Jurisdiction
36. The courts of the State of Victoria are to have jurisdiction to decide and settle any dispute or
claim arising out of or in connection with this Agreement.
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General Provisions
37. This Agreement contains all terms and conditions agreed to by the Indemnifier and the
Indemnitee. Statements or representations which may have been made by either Party in the
negotiation stages of this Agreement may in some way be inconsistent with this final written
Agreement. All such statements are declared to be of no value to either Party. Only the
written terms of this Agreement will bind the Parties.
38. Any failure of either Party to enforce any of the terms, covenants and conditions in this
Agreement does not infer or permit a further waiver of that or any other right or benefit under
this Agreement. A waiver by one Party of any right or benefit provided in this Agreement
does not infer or permit a further waiver of that right or benefit, nor does it infer or permit a
waiver of any other right or benefit provided in this Agreement.
39. This Agreement will pass to the benefit of and be binding upon the Parties' respective heirs,
executors, administrators, successors, and permitted assigns.
40. The clauses, paragraphs, and subparagraphs contained in this Agreement are intended to be
read and construed independently of each other. If any part of this Agreement is held to be
invalid, this invalidity will not affect the operation of any other part of this Agreement.
41. All of the rights, remedies and benefits provided in this Agreement will be cumulative and
will not be exclusive of any other such rights, remedies and benefits allowed by law or equity
that the Parties may have now or may acquire in the future.
42. Time is of the essence in this Agreement.
43. This Agreement may be executed in any number of counterparts, each of which will be
deemed to be an original and all of which together will be deemed to be one and the same
instrument.
44. Headings are inserted for the convenience of the Parties only and are not to be considered
when interpreting this Agreement. Words in the singular mean and include the plural and
vice versa. Words in the masculine gender include the feminine gender and vice versa.
Words in the neuter gender include the masculine gender and the feminine gender and vice
versa.
Property Access and Presence of Owner
45. The Indemnitee will have the right to access the property where the Service is to be performed. The Service can be conducted without the property owner or horse owner being present. By agreeing to the terms and conditions of booking, the property owner or their representative provides consent for the Indemnitee to access the property.
Data Collection and Marketing
46. We collect email and other personal data, for the use of marketing material and general communications. We store our data in line with Australian privacy laws. if you with to be excluded from marketing material please let us know.