Indemnification and Hold Harmless Clauses

The contract provision under which one party agrees to cover another's losses and defend it against claims - what it usually reaches, the state laws that void some of it, and why insurance is the other half of the promise.

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What it means

An indemnification clause shifts a loss from one contracting party to the other. The indemnitor promises that if the indemnitee suffers a loss of a described kind - most often a claim by a third party arising from the indemnitor's work, products or breach - the indemnitor will pay it, including the legal costs of dealing with it. A duty to defend, where included, goes further: the indemnitor must take over and fund the defence of the claim as it is made, before anyone knows who was at fault. "Hold harmless" is usually treated as the same promise in different words, though some courts read it as a release of claims between the parties rather than a promise to pay third-party losses.

The scope is set by drafting, and the words that matter are the triggers (arising out of, caused by, to the extent of), whether the clause covers the indemnitee's own negligence, whether it reaches claims between the parties themselves or only third-party claims, and the exclusions and caps. Many states refuse to enforce a promise to indemnify someone for their own negligence unless the contract says so in express and conspicuous terms, and most have anti-indemnity statutes for construction contracts that void clauses shifting liability for the indemnitee's sole or partial fault. Those statutes differ widely, and a clause valid in one state can be void in the next.

An indemnity is only as good as the indemnitor's ability to pay, which is why commercial contracts pair it with insurance requirements: minimum coverages, naming the indemnitee as an additional insured, waivers of subrogation and certificates. The insurance is what actually funds the promise when a claim arrives.

Where this comes from

When people hire a lawyer for this

Anyone asked to sign a contract with an indemnity should have a lawyer identify what it actually shifts, whether their insurance responds to it, and whether the governing state voids any of it - the answers are frequently not what the clause appears to say. A party that has received a demand for indemnity or defence should respond through counsel and promptly, because insurance policies and many contracts condition coverage on timely notice.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono programme or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• Asset Purchase vs Stock PurchaseThe two ways to buy a business - buying what it owns or buying the entity that owns it - and why the choice decides which liabilities come with it, which contracts transfer, and how the price is taxed.
• Breach of ContractA failure to do what a binding agreement required - and the question a court actually asks is not whether someone broke a promise but what the loss was and whether it could have been avoided.
• Buy-Sell AgreementThe contract between co-owners of a business that says what happens to an owner's share when they die, leave, divorce or go bankrupt - who must or may buy it, at what price, and with what money.
• DBA (Fictitious Business Name)A registered trade name under which a person or company does business - which tells the public who is behind the name and does nothing else.
• Fiduciary Duties and the Business Judgment RuleThe duties of care and loyalty that directors, officers, managers and controlling owners owe the business, the rule that protects honest decisions that turned out badly, and the derivative suit that enforces them.
• Franchise Disclosure Document (FDD)The document a franchisor must give a prospective franchisee before any contract is signed or money changes hands - what the federal rule requires it to contain, what it does not promise, and the state laws that add registration and relationship rights.
• General and Limited PartnershipsA general partnership can be formed by conduct with no paperwork and makes every partner personally liable; a limited partnership requires a filing and shields the partners who do not manage. What each is, and the LLP and LLLP variants.
• Independent Contractor vs EmployeeTwo legal categories of worker with very different consequences for taxes, overtime and liability - and a label in a contract does not settle which one applies.
• Letter of Intent (LOI) and Term SheetThe preliminary document that sets out the main terms of a deal before the contract is drafted - which parts of it are usually binding, which are not, and how a "non-binding" letter still creates obligations.
• Limited Liability Company (LLC)A business form that shields its owners from most business debts while staying simpler to run than a corporation.
• Non-Compete AgreementA promise not to work for a competitor or start a competing business for a period after a relationship ends - enforceable in some states, sharply limited in others, and void in a few.
• Non-Disclosure Agreement (NDA)A contract restricting what one or both sides may do with information the other shares - and, unlike trade secret law, it binds only the person who signed it.
• Operating AgreementThe private contract among an LLC's owners that decides who controls the company, how money is split, and what happens when someone leaves - or the state's default rules decide it for them.
• Personal GuaranteeA promise by an individual - usually a business owner - to pay a company's debt personally if the company does not, which puts the owner's own assets behind the loan or lease regardless of the entity's liability shield.
• Piercing the Corporate VeilThe exception under which a court holds an owner personally liable for a company's debts, despite the limited liability the company normally provides.
• Registered AgentThe person or company a business entity must designate to receive lawsuits and official notices on its behalf - and the address at which a default judgment can quietly begin.
• S Corporation ElectionA tax election, not a kind of company - what electing S status does to how a corporation or LLC is taxed, who is eligible to make it, and how it is lost.
• UCC Financing Statement (UCC-1)The public notice a lender files to stake its claim on a borrower's equipment, inventory, receivables or other business property - the filing that decides who gets paid first when a business fails.

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