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Understanding Indemnification Clauses



Indemnification clauses are provisions that can be found in various legal contracts. These clauses designate the risks assumed by each of the parties that are involved in a business transaction. They can often help to protect one party or the other from liability, financial losses, or other legal claims, particularly those stemming from the actions of another party to the agreement. 

Find out why these cases are a vital part of any contract. If you want to learn about business contract provisions, contact Schwab & Gasparini by calling (315) 422-1333 in Syracuse, (518) 591-4664 in Albany, or (914) 304-4353 in White Plains or the Hudson Valley to schedule a personalized consultation.

What Is an Indemnity Clause?

Indemnification clauses are also known as "hold harmless" agreements. When an indemnification agreement is in place, one party agrees not to pursue compensation from the other party for any losses covered under the indemnity clause, according to the American Bar Association

The indemnitor assumes the risk of potential damage or claims from the contract's performance. These clauses typically also detail the coverage's scope and outline the circumstances that will trigger the indemnification.

What Are the Characteristics of a Good Indemnity Clause?

A well-drafted indemnity clause in a contract can impact the signatory parties' obligations and rights. However, to make sure these clauses are effective, they should have the following:

Clear and Precise Language

A good indemnity clause should have clear, precise, and unambiguous language. Harvard Business Review touts the need for concise language in contracts. If there is any ambitious wording, it could potentially lead to confusion and even disputes between the parties. 

With precise language, all parties will clearly understand their responsibilities and roles in the event of a loss or claim. 

Defined Scope and Limits

The clause should also always define the scope of indemnification, leaving no room for any uncertainty. As a result, both parties will be aware of the risks and extend their responsibilities. Along with that, these clauses can put a limitation on legal liabilities, which can prevent the indemnitor from taking on a vague or excessive obligation that cannot be fulfilled. 

Coverage of Third-Party Claims

In many cases, these indemnity clauses should address the coverage of third-party claims. If that is the case, then the circumstances in which any party to the agreement will be indemnified against such claims should be elaborated in the contract to clarify the scope of protection when third parties are involved. These clauses protect the indemnitee from liabilities that may result from the activity of a third party. 

Notice and Cooperation Requirements

Another essential part of these clauses establishes expectations regarding the timely notification of any potential claims. A well-drafted clause will detail the obligations of all parties with respect to prompt notice of possible claims. These clauses may also have a provision that requires both the indemnitor and the indemnitee to participate in the defense or claim settlement to resolve disputes quickly. 

Insurance Considerations

Additionally, an indemnity clause should also address any insurance requirements for the involved parties. This provision may also specify the type and minimal insurance coverage the indemnitor should maintain to fulfill their obligations. An adequate amount of insurance adds another layer of protection for the indemnitee. 

Seeking legal assistance during the drafting and negotiation process can help make sure that the indemnity clause is well-crafted fair, and serves its intended purpose of protecting parties against potential risks and losses. If you would like to learn more, please contact Schwab & Gasparini.

What Is an Example of an Indemnification Clause?

An example of an indemnification clause in a service agreement between a provider (indemnitor) and a client (indemnitee) could include:

"The (provider) agrees to indemnify and hold the client harmless from any claims, damages, liabilities, losses, or expenses arising from the use of the developed product, provided that the client promptly notifies the provider of any potential claim and cooperates in the defense or settlement of the claim."

What Are Problems With Indemnity Clauses?

While indemnity clauses can be a powerful tool to help mitigate contract risks, they can also create challenges in some cases. Some of these include: 

Unforeseen Liability

When drafting these clauses, it is not always possible to foresee all the potential risks that can occur in a business relationship. With this lack of foresight, unexpected liabilities not fully accounted for in the original indemnification agreement might arise for one or both parties. For example, a product could have unanticipated defects that could lead to legal issues. As a result, it could leave the indemnitor exposed to financial burdens. 

Imbalance of Bargaining Power

During contract negotiations, one party can have more bargaining power over another. With that power dynamic, the indemnity clause could favor the stronger party's interests, leaving the other party with increased exposure to potential losses and limited legal resources. In these cases, the disadvantaged party may feel pressured to accept these unfavorable terms to secure a contract even though it leaves them with an inequitable distribution of risk. 

Ambiguity and Interpretation

As with any contract terms, these indemnity clauses must have unambiguous and precise language to avoid potential disputes due to misinterpretation. Many times, ambiguous language can cause disagreement about the applicability and scope of the indemnification. If there is any legal action, then those parties could spend a significant amount of time debating the meaning of the causes, which can lead to more expenses and added delays. 

Insufficient Insurance Coverage

Along with the indemnification clause, a party should have the appropriate insurance coverage to protect their interests. Suppose the indemnitor does not have enough financial resources or assets to fulfill their obligations. In that case, they may not be able to cover losses sustained by the indemnitee despite the contract terms. In some cases, the indemnitor could fail to meet their obligations, leaving the indemnitee with few options to pursue legal compensation. 

All parties should strive for fairness and clarity in these clauses to minimize the likelihood of unforeseen liabilities, power imbalances, disputes, and insufficient protection. Seeking legal counsel during contract negotiations can help to draft effective indemnity clauses that provide the necessary protection while promoting a balanced agreement between the involved parties.

Contact Our New York Business Litigation Attorneys Today

Indemnification clauses help to define the allocation of risk and liability in contractual agreements. A clear and compelling indemnity clause will outline all the specific circumstances and potential risks involved in the contract. In any case, the parties may want to seek legal counsel to ensure these provisions are fair and enforceable, offering adequate protection in case of unforeseen events. 

To learn more, contact an experienced business and contract attorney with Schwab & Gasparini by calling (315) 422-1333 in Syracuse, (518) 591-4664 in Albany, or (914) 304-4353 in White Plains or the Hudson Valley.

Fri Sep 1 2023, 12:00am