A Nice Balanced Indemnification Clause

Written By John E. Grant  |  Future of Law  |  1 Comments

I feel like like I’ve been reviewing a lot of painfully one-sided contract clauses lately, so I was pleasantly surprised when I came across this little beauty. Indemnification is something everyone looks for, especially for IP, so it always baffles me when I wind up going round and round with opposing counsel trying to make indemnifications flow both ways: You cover me for the things you bring to the relationship, and I’ll cover you for the things I bring. Why is this so hard?

I could quibble with a few of the word choices below, but overall it is a comprehensive yet simple and balanced indemnification clause. So I thought I’d share.


(a)     Neither party assumes any liability to third persons with respect to any intentional or negligent act or omission of the other party or any employee, agent, or contractor of the other party, in the performance of this Contract.

(b)     Each party agrees to indemnify and hold the other party and its directors, officers, members, employees, and agents from and against all demands, claims, losses, damages, judgments, expenses and costs (including attorney fees) arising out of or relating to any and all personal injury or property losses arising out of or related to the performance of this contract; provided, however, that reasonable notice, authority and information to defend is given. And, provided that parties will have no such indemnification obligations to the extent that such demands, claims, losses, damages, judgments, expenses and costs are based on, or arise out of the other party’s willful or negligent acts or omissions.

(c)     Each party agrees to indemnify and hold the other party harmless against any losses, costs, expenses (including, but not limited to, reasonable attorneys’ fees), claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) resulting from any claim, suit, action, or proceeding brought by any third party against the indemnified party related to or arising out of any actual or alleged infringement or misappropriation of any United States copyright, trade secret, patent, trademark, or other proprietary right related to any hardware, software, or materials provided by the indemnifying party in connection with this contract.

To receive the foregoing indemnities, the party seeking indemnification must notify the indemnifying party in writing of a claim or suit promptly and provide reasonable cooperation (at the indemnifying party’s expense) and full authority to defend or settle the claim or suit. Neither party will have any obligation to indemnify the other under any settlement made without its written consent.

Do we need to say any more than that?

  • I like the conciseness of the provision. I suggest that “United States” be positioned after “trade secret,” and before “patent.” Under the Berne Convention, a foreign copyright can be enforced in the United States.

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