As part of our Corporate and Commercial practice, we provide indemnity & hold harmless agreements drafting services.

Indemnity and hold harmless agreements and clauses provide a shift of risk to a party in a commercial contract. Such indemnity clauses are necessary in certain corporate and commercial transactions where a party relies on another against risk of infringement. For example, in contracts involving intellectual property rights, a buyer or distributor would want assurance regarding IP infringement actions. Therefore, indemnity and hold harmless agreements and clauses in contracts help provide a guarantee from liability will be upheld.

Indemnity and Hold Harmless Agreements in IP Related Transactions

Indemnification clauses are common provisions in agreements between parties that desire to provide reassurances regarding risk of infringement. Intellectual property (IP) related transactions include commercial agreements involving patents, trademarks, copyrights, and other IP related assets. Indemnity and hold harmless agreements are often necessary in such transactions to obligate a party to “defend” and/or “hold-harmless” another. Generally, an indemnification clause requires one party to compensate the other party for losses or damages covered by the indemnity clause. For example, if a distributor is included in litigation for IP infringement due to sale of another’s product, indemnification may help avoid a loss. The distributor can seek indemnity from defense or litigation cost based on an existing indemnification agreement with the product owner.

Therefore, ensuring indemnity and hold harmless agreements are incorporated into commercial contracts involving IP rights is important at the forefront. Intellectual property attorneys with experience drafting and negotiating corporate and commercial transactions can best assist with indemnity clause protection.

Importance of Indemnity and Hold Harmless Agreements in Commercial Transactions

Indemnification is important to consider before entering into a commercial transaction or contract involving intellectual property rights. And, most commercial transactions will involve some form of intellectual property. Infringement liability can become a very serious/costly issue without indemnity and hold harmless agreements once a contact is active. Companies should be wary of using boilerplate forms or third party one-sided contracts. These agreements may lack in adequate indemnity provisions.

One should seek the advice of counsel experienced in IP related transactions to review and negotiate indemnity and hold harmless agreements and clauses. The scope of the indemnification obligations often differs, typically depending on the following, among various other factors:

The particular party to the transaction
Risk of third-party claims
Limitations on damages
Fiduciary relationships
Indemnity obligations

Our IP Indemnification Related Services

Our intellectual property attorneys have experience drafting and reviewing complex commercial agreements requiring indemnification clauses. We understand the type of indemnification issues that arise in commercial transactions. So, we are able to identify areas of concern in contracts involving IP rights and requiring indemnity provisions. Additionally, we represent clients in indemnity disputes that trigger an indemnity obligations or a hold harmless clause into effect.