Indemnification and hold harmless provisions are included in most commercial contracts, including sales agreements, leases, lending agreements, software licenses, construction contracts and M&A agreements. These clauses allow parties to contractually allocate risk and reduce liability exposure. Effective indemnification clauses clearly outline risks that are indemnified, exclusions from indemnity, and procedures for making an indemnification claim. When negotiating and drafting indemnification and hold harmless clauses, counsel for contracting parties must anticipate and address potential statutory limitations, as well as enforcement and procedural hurdles. Attorneys must also outline how insurance coverage will interplay with indemnification and hold harmless provisions.

Our panel will provide guidance to business counsel for drafting and negotiating indemnification and hold harmless provisions in commercial contracts. The panel will discuss key elements of indemnification agreements, including scope, exclusions and cost allocation; enforceability challenges; the interplay with insurance coverage; and strategies for avoiding common negotiation pitfalls.

We will review these and other key issues:

• What are the parameters of statutory and common law indemnity and how can parties alter these obligations contractually?

• How can business counsel best mitigate risk when drafting and negotiating indemnification and hold harmless provisions in commercial contracts?

• How have the courts’ varying interpretations of indemnification provisions impacted parties’ ability to shift liability in commercial contracts?

• What enforceability challenges do parties commonly face when seeking to make an indemnification claim?

After our presentations, we will engage in a live question and answer session with participants so we can answer your questions about these important issues directly.