In this article, we’ll answer common questions regarding indemnification clauses in contracts, including “What is an indemnification clause?” and “How do I write a secure indemnification clause?” Indemnification clauses can appear confusing or intimidating and are often overlooked, as they contain unfamiliar legal jargon; continue reading to learn how to effectively navigate these clauses.
An indemnification clause is a common element of contracts, used to formally transfer the risk of potential costs from one party to another. Legally defined as, “to make reimbursement to one of a loss already incurred by him,” an indemnity clause states that one party agrees to “indemnify the other party,” or absorb the losses caused by the other party.
When you agree to indemnify someone, you are stating that if you or your agents do certain specified things that result in the other party experiencing monetary loss, damages, or a lawsuit from a third party, you agree to defend the other party and pay for all costs of the lawsuit including any damages they are required to pay as a result of the suit. You are also agreeing to pay the other party back for any out of pocket costs resulting from your wrongdoing.
Essentially, the indemnifying party is acting as an insurer, because the giver of the indemnity is monetarily responsible to the other party in the agreement for things that may go wrong.
Some of the most common types of indemnification clauses are:
Example A: Imagine that you are a business owner, and you hire a contractor to complete a few renovation projects. During construction, the contractor injures the local UPS driver and damages his vehicle. The UPS driver, a third party in this scenario, would likely sue both the contractor and your business, because the incident happened on your property. Let’s assume the case goes to trial, your company is found as not liable, and the contractor is found to be 100% responsible. At this point, you will have spent a lot of money defending yourself in the lawsuit. Depending on the indemnity clause you and the contractor agreed on, your company might be entitled to reimbursement from the contractor of all the money you put toward defending yourself in the lawsuit. If you had agreed to shift all liability costs to yourself in the contract, you would not be able to receive reimbursement, even though you had nothing to do with the incident. If you had indemnified the contractor, you would be responsible for all of his costs, on top of your own.
Example B: Imagine that you are a manufacturer of a technical gadget, and a distribution company sells your product for you. One day, your gadget malfunctions and explodes, injuring one of your customers. The injured customer then sues the distributor, because they sold your product to the customer. The distributor is then required to pay the customer a specified amount of money. If you provided indemnity for your distributor in the indemnity clause of your contract, the distributor would be able to turn around and request reimbursement from your company to replace the cost of paying to a third party. You might also be responsible for the distributor's court costs and legal fees along the way, depending on the fine print.
As you can see from these examples, indemnifying another party can become costly in a matter of seconds, especially if the clause is broadly worded and covers all claims, regardless of their merit.
If you’re considering indemnifying another party in a contract, consider the following:
Even if an indemnification clause doesn’t seem fair, most courts will enforce it. The court system usually says that the parties to the contract are free to allocate the risks whichever way they agree on. If both parties agree, the court will validate the current indemnity clause, even if one party seems to hold more risk than the other.
When indemnities are going both ways for all parties (both parties are giving an indemnity for some things and receiving indemnity for others in the same agreement), it’s important to balance the risks and rewards evenly.
Never try to cover third parties and circumstances beyond the ordinary breach circumstances actionable under common law. There is no need for you to guarantee indemnity for the other party where common law would demand the same action. By protecting these one-off scenarios, circumstances may branch into unintended onerous obligations where common law cannot otherwise impose.
Be as clear as possible when drafting an indemnity clause. Any ambiguity in the contract presents a risk that the indemnity cannot cover losses that the receiving party is counting on. Ambiguity is also risky for the indemnifier, as they may be required to indemnify losses that were never considered or agreed upon. When it comes to commercial negotiations, document the entire scope of the negotiated indemnity and identify exact coverage.
Another aspect of the indemnification clause to keep in mind is the duration of liability. Define exactly how many years the indemnity can be enforced before becoming invalid. The limitation period in relation to an indemnity clause starts from the date of which the indemnifier refuses to honor the indemnity. The indemnified party would then have a specified number of years from that date to bring legal proceedings and enforce the indemnity. In most instances, parties granting indemnity do not realize the extended period of time in which they are covering risk as part of their indemnity obligations