Indemnity

==United States contracts==
Many private contracts and [[terms of service]] in the United States require one party (indemnitor, typically a customer) to pay (indemnify) the other side's costs for legal claims arising from the relationship. They are particularly common in online services.<ref name="qmul1">{{Citation |last1=Kamarinou |first1=Dimitra |title=Privacy in the Clouds: An Empirical Study of the Terms of Service and Privacy Policies of 20 Cloud Service Providers |date=18 August 2015 |last2=Millard |last3=Hon |first2=Christopher |first3=W. Kuan |publisher=Queen Mary University of London{{Snd}} Cloud Legal Project |ssrn=2646447 }}</ref>

The US government publishes special Terms of Service,<ref name="US-NTOSA">{{cite web |title=Negotiated Terms of Service Agreements |url=https://www.digitalgov.gov/resources/negotiated-terms-of-service-agreements/ |publisher=[[U.S. General Services Administration]] |access-date=3 December 2019 |date=13 January 2014}}</ref> which it has negotiated with many companies, to exclude indemnification for official US government work. US law "is violated by any indemnification agreement that, without statutory authorization, imposes on the United States an open-ended, potentially unrestricted liability."<ref name=ag>The Anti-Deficiency Act Implications of Consent by Government Employees to Online Terms of Service Agreements Containing Open-Ended Indemnification Clauses (Opinion of the US Attorney General. 2012) [https://www.courtlistener.com/opinion/4342057/the-anti-deficiency-act-implications-of-consent-by-government-employees-to/ opinion]</ref>
<ref>''Hercules, Inc. v. United States'', 516 U.S. 417 (1996) [https://www.courtlistener.com/opinion/118004/hercules-inc-v-united-states/ opinion]</ref> The Attorney General says federal agencies "should renegotiate the terms of service to revise or eliminate the indemnification clause or cancel the [government]'s enrollments in social media applications when their operators insist on such a clause."<ref name=ag />

===State variations===
Under US law, interpretation of indemnification clauses varies by state.<ref name=bern>Bernstein, Jedidiah M. Esq. (May 2017). http://www.jdsupra.com/legalnews/tips-for-a-startup-manufacturer-in-31651/</ref> For example, in California indemnification clauses do not cover certain risks unless the risks are listed in the contract, but in New York, the brief clause, "X shall defend and indemnify Y for all claims arising from the Product" makes X responsible for all claims against Y.<ref name=bern /> Indemnity can be extremely costly since X's liability insurance typically does not cover claims against Y, but X still has to cover them.<ref name="boatus" />

In 2017, the [[Utah Supreme Court]] stated, "By statute, a contractual provision requiring a purchaser of a product to indemnify a manufacturer is 'void and unenforceable' in certain circumstances. UTAH CODE § 78B-6-707."<ref>Bylsma v. R.C.WilleyHumanTouch, 2017 UT 85 [https://www.courtlistener.com/opinion/4448338/bylsma-v-rcwilleyhumantouch/ opinion]</ref>

In 2012–2014, a New Jersey woman had to pay a lawyer to get out of an indemnity payment for injury at a storage unit. When someone slipped on ice in 2012 while going to a unit, [[Public Storage]] sued in court to make the woman who rented the unit pay for the injury. She tried to ignore the case and so state court ruled that she had to pay. She then retained a lawyer and went to court. In 2014, the [[United States District Court for the District of New Jersey|US District Court]] decided that the specific indemnity clause was unenforceable in New Jersey because it covered Public Storage's own negligence without explicitly saying so, contrary to New Jersey law (other states differ).<ref>''Martinez-Santiago v. Public Storage'' (1:14-cv-00302-JBS-AMD),
[https://www.courtlistener.com/recap/gov.uscourts.njd.298992.24.0.pdf opinion] and
[https://www.courtlistener.com/docket/4311531/martinez-santiago-v-public-storage/ docket]</ref>
A 2013 decision in New Jersey upheld a broad indemnity clause since it was followed by another sentence: "indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the State of New Jersey." The judge said, "It is true that a consumer, unfamiliar with the laws of New Jersey, would not be able to state with certainty how far the waiver extends."<ref>''Sauro v. L.A. Fitness International, LLC'' (1:12-cv-03682), [https://www.courtlistener.com/recap/gov.uscourts.njd.275723.30.0.pdf opinion] and [https://www.courtlistener.com/docket/4310733/sauro-v-la-fitness-international-llc/ docket]</ref>

In 2010, the [[Colorado Supreme Court]] required a flower shop to indemnify its shopping center for a customer who slipped on the icy parking lot, though of no fault of the flower shop, because the tenant was there to visit that shop, and the shop's lease had a broad indemnity clause.<ref name="cohen">{{cite journal | url=https://www.commercialtenantsleaseinsider.com/article/three-strategies-limiting-your-indemnity-obligation | title=Three Strategies for Limiting Your Indemnity Obligation | author=Cohen, Alan M. Esq. | journal=Commercial Tenants Lease Insider | date=April 2014 | access-date=2016-04-22 | archive-date=2017-09-25 | archive-url=https://web.archive.org/web/20170925083547/https://www.commercialtenantsleaseinsider.com/article/three-strategies-limiting-your-indemnity-obligation | url-status=dead }}</ref>

In 1999, the [[United States District Court for the District of Wyoming]] did not require a customer to indemnify a whitewater rafting company for injury to his wife since the wording may have applied only to him and his children, and clauses cannot be enforced in Wyoming to indemnify a company for its own negligence.<ref name="wyo">{{cite web |url=https://www.leagle.com/decision/1999135231fsupp2d132111193 |title=''Madsen v. Wyoming River Trips 31'' F.Supp.2d 1321 (1999) |website=Leagle |access-date=25 September 2017}}</ref>

In 1979, the [[Minnesota Supreme Court]] ruled that a subcontractor must indemnify the builder for damages that it caused, according to an indemnification clause in their purchase order.<ref>''Turner v. Alpha Phi Sorority House'' 276 N.W.2d 63 (Minn. 1979) [https://www.courtlistener.com/opinion/1737796/turner-v-alpha-phi-sorority-house opinion]</ref>

In 1966, the [[Supreme Court of California]] ruled that [[The Hertz Corporation]] could not enforce its clause requiring renters to indemnify Hertz's insurer.<ref>''Atlantic Nat. Ins. Co. v. Armstrong'' 65 Cal. 2d 100 (Cal. 1966) [https://www.courtlistener.com/opinion/1232527/atlantic-nat-ins-co-v-armstrong opinion]</ref>

===With negotiations===
Indemnities can be expensive enough to bankrupt a company which pays them: "If manufacturers&nbsp;... are to survive, they will need liability insurance, as well as favorable contracts with retailers. If you look at a big retailers, such as Trader Joe's or Costco or Walmart or Randalls, very often there will be an indemnity provision providing that, if you want to sell a product in our stores, and if it gets someone sick or if it has to be recalled, and it's your fault, you must pay us back for that."<ref name="NFE-20190103">{{Cite news |url=https://newfoodeconomy.org/mccain-foods-salmonella-listeria-recall-2018/ |title=The biggest food recall of 2018 is one you still haven't heard about |last=Bloch |first=Sam |date=3 January 2019 |work=New Food Economy |access-date=8 February 2019 }}</ref>

When a contract is "negotiable," the indemnitor negotiates to control those legal costs. It will not let the indemnified party (indemnitee) overspend: "An arrangement in which the indemnitee makes decisions about how to defend and settle the claim while the indemnitor writes the checks presents a [[moral hazard]]. Knowing that its defense and settlement costs are being borne by the indemnitor, the indemnitee may be encouraged to engage a more expensive legal team or pursue a riskier defense strategy than it would otherwise. For this reason, most indemnitors are unwilling to indemnify against claims when they do not control the defense of the claim."<ref name="steinberg">{{cite journal | url=http://www.dailyreportonline.com/id=1202747710279/Indemnity-Procedures-and-Liability-in-IT-Contracts?mcode=0&curindex=0&curpage=ALL | title=Indemnity Procedures and Liability in IT Contracts |author1=Steinberg, Jim  |author2=Lance McCord | journal=Daily Report | date=January 2015}}</ref>

The [[American Bar Association]] has published advice on negotiations of construction contracts: that (1) owners try to get contractors to indemnify as much as possible and for (2) contractors (a) indemnify only for their own negligence and (b) "establish a right but not a duty for the contractor to defend under an indemnification claim."<ref name="PP2014-28.5">{{Cite journal |journal=Probate and Property |first1=Bruce W. |last1=Merwin |first2=Joanne |last2=Linley |first3=Tracy L. |last3=Steedman |url=https://www.tklaw.com/files/Publication/632aa92a-f020-4001-bbc8-d5a1d3e83c60/Presentation/PublicationAttachment/5c85c61b-0b85-4777-93ff-d95505b1d707/ABA_PP_v028n05__critical_construction_contract_clauses.pdf |title=Critical Construction Contract Clauses |publisher=[[American Bar Association]] |year=2014 |volume=28 |issue=5 |archive-url=https://web.archive.org/web/20171211160957/https://www.tklaw.com/files/Publication/632aa92a-f020-4001-bbc8-d5a1d3e83c60/Presentation/PublicationAttachment/5c85c61b-0b85-4777-93ff-d95505b1d707/ABA_PP_v028n05__critical_construction_contract_clauses.pdf |archive-date=11 December 2017}}</ref>

An example of letting the indemnitor control costs is in the case of a contractor for a homeowners' association (HOA) in which "Contractor shall indemnify, defend (by counsel reasonably acceptable to Association) and hold harmless the Association."<ref name="stirling">{{cite web | url=http://www.davis-stirling.com/MainIndex/HoldHarmlessIndemnify/tabid/539/Default.aspx | title=Hold Harmless & Indemnify | publisher=Adams-Stirling Professional Law Corp | access-date=22 April 2016}}</ref> Companies and HOAs also use indemnity to protect directors since few would serve as directors if their risks were not indemnified.<ref name="cam">{{cite web |title=Association Answers: Are HOA board members protected from lawsuits? |date=4 September 2012 |url=https://www.communityassociationmanagement.com/c49-legal-compliance/c57-ask-the-experts/association-answers-are-hoa-board-members-protected-from-lawsuits/ |access-date=22 April 2016 |publisher=Community Association Management, reprinted from [[The Charlotte Observer]]}}</ref> Negotiation is important for both parties. "Just about all homeowner association management contracts have a provision which states that the HOA shall indemnify the manager under certain circumstances&nbsp;... There are several ways the indemnification clause can be drafted and both management and HOA must take into account what protects each the best."<ref name="thompson">{{cite journal | url=http://realtytimes.com/consumeradvice/hoaadvice1/item/7280-20070321_indemnifymanag | title=Indemnify the HOA Manager | author=Thompson, Richard | journal=Realty Times | date=March 2007}}</ref>

If indemnitors can negotiate a limit on liability in their contract, that limits the cost of a potential indemnity if they "make clear in the agreement that any limitations of liability (whether in the form of caps or exclusions of certain types of damages{{Snd}} e.g., consequential) apply to the&nbsp;... indemnification."<ref name="corpcounsel">{{cite journal | url=http://www.corpcounsel.com/id=1202759907099/Some-IP-Indemnification-Considerations-for-Tech-Vendors | title=Some IP Indemnification Considerations for Tech Vendors | author=Michael Bloom, Lindsey Chandler and Alexa Peterson | journal=Corporate Counsel | date=13 June 2016}}</ref>

===Without negotiations===
When a contract is {{em|not}} negotiable ([[adhesion contract]]), the wording often lets the indemnitee decide what to spend on legal costs and bill the indemnitor.<ref name="qmul2" /> Most clauses are quite broad.<ref name="qmul2">{{Cite web |last1=Bradshaw |first1=Simon |last2=Millard |first2=Christopher |last3=Walden |first3=Ian |date=2 September 2010 |title=Contracts for Clouds: Comparison and Analysis of the Terms and Conditions of Cloud Computing Services |url=https://www.claydesk.com/wp-content/uploads/2013/10/contracts-for-clouds-comparison-and-analysis.pdf |archive-url=https://ghostarchive.org/archive/20221009/https://www.claydesk.com/wp-content/uploads/2013/10/contracts-for-clouds-comparison-and-analysis.pdf |archive-date=2022-10-09 |url-status=live |location=Rochester, NY |publisher=Queen Mary University of London{{Snd}} Cloud Legal Project}}</ref><ref name="phillips">{{Cite book |last=Phillips |first=Andelka M. |title=2015 IEEE Security and Privacy Workshops |chapter=Genomic Privacy and Direct-to-Consumer Genetics: Big Consumer Genetic Data -- What's in that Contract? |date=2015 |location=San Jose, CA |publisher=[[IEEE]] |pages=60–64 |doi=10.1109/SPW.2015.19 |isbn=9781479999330 |hdl=2262/77428 |s2cid=14504403 |hdl-access=free}}</ref> The following are examples of indemnity requirements from a range of businesses. The last one, Angie's List, limits issues to the user's fault, but decisions and costs are still controlled by the indemnitee (Angie's List).
* "The yacht owner shall indemnify, defend, and hold harmless the marina from any costs, expenses, damages, and against all claims, demands, loss, lawsuits, including judgments and attorney fees for damages to property, injury or life to third parties resulting or arising from the yacht owner's use of the yacht." The lawyer for a boat owners' group interpreted that as meaning: "By signing a marina contract with such provisions, you may find yourself responsible for costs not covered by your insurance policy&nbsp;... What it means is that if your guest is injured at the marina, even if it's the marina's fault, you agree that you will defend the marina against the claim and pay any damages for which the marina is deemed responsible."<ref name="boatus">{{cite journal |url=http://www.boatus.com/magazine/2015/april/marina-contract.asp | title=What's Really In Your Marina Contract? |author1=Fort, Charles |author2=Raul Chacon, Esq. |journal=BoatUS Magazine |date=April 2015}}</ref>
* "You agree to indemnify and hold Uber&nbsp;... harmless from any and all claims&nbsp;... in connection with: (i) your use of the Services&nbsp;..."<ref name="TOS-Uber">{{cite web|url=https://www.uber.com/legal/usa/terms |title=Uber Terms and Conditions |date=2 January 2016 |website=[[Uber]] |access-date=19 February 2018 }}</ref>
* "Occupant shall indemnify and hold Owner [Public Storage] and Owner's Agents harmless from any loss incurred by Owner and Owner's Agents in any way arising out of Occupant's use of the Premises or the Property including, but not limited to, claims of injury or loss by Occupant's visitors or invitees."<ref name="TOS-PS">{{cite web|url=https://www.publicstorage.com/SiteData/RentalAgreements/NJ.pdf |archive-url=https://ghostarchive.org/archive/20221009/https://www.publicstorage.com/SiteData/RentalAgreements/NJ.pdf |archive-date=2022-10-09 |url-status=live |title=Public Storage Lease/Rental Agreement for New Jersey |access-date=19 February 2018 }}</ref>
* "You agree to defend, hold harmless and indemnify edX [founded by Harvard and MIT]&nbsp;... against any third-party claims&nbsp;... in any way related to your use of the Site&nbsp;..."<ref name="TOS-edX">{{cite web|url=https://www.edx.org/edx-terms-service |date=22 October 2014 |title=edX adopted amended Terms of Service |website=Edx.org |access-date=19 February 2018 }}</ref>
* "You agree that you will indemnify and hold harmless NPR&nbsp;... from any and all claims&nbsp;... arising from&nbsp;... (2) your use of the NPR Services, (3) the User Materials you have Submitted on or through the NPR Services, or (4) NPR's publication, distribution or use of such User Materials&nbsp;..."<ref name="TOS-NPR">{{cite web |url=https://www.npr.org/about-npr/179876898/terms-of-use |title=NPR Terms of Use |date=29 June 2015 |website=[[National Public Radio]] |access-date=19 February 2018 }}</ref>
* "If you are using our Services on behalf of a business, that business accepts these terms. It will hold harmless and indemnify Google&nbsp;... from any claim, action or proceedings arising from or related to the use of the Services&nbsp;..."<ref name="TOS-Google">{{cite web|url=https://www.google.com/policies/terms/ |title=Google Terms of Service |date=14 April 2014 |access-date=19 February 2018 }}</ref>
* "Upon request by Bank of America or its Affiliates, you agree to defend, indemnify and hold harmless Bank of America&nbsp;... from all liabilities, claims and expenses, including attorneys fees, that arise from&nbsp;... third party claims arising from your use of the Sites. Bank of America and its Affiliates reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. Notwithstanding the foregoing, you are not required to indemnify Bank of America or its Affiliates for its own violations of applicable laws."<ref name="TOS-BoA">{{cite web |url=http://corp.bankofamerica.com/business/bi/terms-and-conditions |title=Terms and Conditions for Bank of America Corporation Websites |website=[[Bank of America]] |access-date=19 February 2018 |archive-date=28 May 2012 |archive-url=https://web.archive.org/web/20120528191543/http://corp.bankofamerica.com/business/bi/terms-and-conditions |url-status=dead }}</ref>
* "You agree to indemnify, defend and hold harmless Verizon Parties from and against all losses&nbsp;... related to claims made by any third-party due to or arising out of (a) Submitted Material&nbsp;... (b) your use of the Sites or Resources&nbsp;... Verizon reserves the right to assume the defense and control of any matter subject to indemnification by you, in which event you will cooperate with Verizon in asserting any available defenses."<ref name="TOS-VZ">{{cite web|url=https://www.verizon.com/about/terms-conditions/terms-of-use |title=Verizon Terms & Conditions for websites |website=[[Verizon]] |date=10 December 2015 |access-date=19 February 2018 }}</ref>
* "You agree to indemnify, defend and hold harmless Angie's List&nbsp;... against all losses&nbsp;... arising from: (a) any violation of this Agreement by You; (b) the inaccurate or untruthful Content or other information provided by You to Angie's List or that You submit, transmit or otherwise make available through the Service; or (c) any intentional or willful violation of any rights of another or harm You may have caused to another. Angie's List will have sole control of the defense of any such damage or claim."<ref name="TOS-AL">{{cite web|url=http://my.angieslist.com/AngiesList/ALUserAgreement.aspx |title=Angie's List Membership Agreement{{Snd}} item 26 |date=9 May 2014 |website=[[Angie's List]] |access-date=19 February 2018 }}</ref>