Drafting Indemnification and Hold Harmless Provisions in Commercial Contracts

Negotiating Scope and Exclusions, Allocating Costs, Overcoming Enforcement Hurdles, Interplay With Insurance

Recording of a 90-minute CLE webinar with Q&A

Conducted on Monday, August 10, 2020

Recorded event now available

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Program Materials

This CLE webinar will guide business counsel in drafting and negotiating indemnification and hold harmless provisions in commercial contracts. The panel will discuss critical elements of indemnification agreements, including scope, exclusions, and cost allocation. The panel will review enforceability challenges, the interplay with insurance coverage, and strategies for avoiding common negotiation pitfalls.

Description

Most contracts--sales agreements, professional services agreements, leases, lending agreements, software licenses, construction contracts, and M&A agreements--include indemnification and hold harmless provisions. These clauses have become ubiquitous in all industries and specialties. They allow parties to allocate risk and reduce liability exposure. Indemnification clauses must clearly outline the risks covered by the indemnity clause(s), 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 consider how insurance coverage will interplay with indemnification and hold harmless provisions, a step often overlooked. In addition, in highly regulated industries such as the health care sector, attorneys must take into account Fraud and Abuse regulations.

Listen as our authoritative panel of attorneys explains best practices for drafting and negotiating indemnification and hold harmless provisions in commercial contracts. The panel will provide strategies for avoiding common negotiation pitfalls, anticipating and overcoming enforcement hurdles, and reconciling indemnification with insurance coverage.

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Outline

  1. Drafting indemnification and hold harmless provisions
    1. Statutory and common law limitations
    2. High priority provisions
    3. Exculpatory clauses
  2. Enforcing indemnification provisions
  3. Interplay with insurance coverage

Benefits

The panel will review these and other crucial 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 various contracts?
  • How have the courts' varying interpretations of indemnification provisions impacted parties' ability to shift liability in contracts?
  • What enforceability challenges do parties commonly face when seeking to make an indemnification claim?

Faculty

Bibet-Kalinyak, Isabelle
Isabelle Bibet-Kalinyak
Member
McDonald Hopkins

Ms. Bibet-Kalinyak is a member of McDonald Hopkins and a corporate attorney in our national Healthcare Practice Group....  |  Read More

Sprang, Kenneth
Kenneth A. Sprang
Managing Member
Washington International Business Counsel

Mr. Sprang counsels and represents domestic and international clients in a wide range of corporate, business and...  |  Read More

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