LegalNature's release of liability agreement is an excellent way to help parties accomplish their goals by better dividing responsibility for legal risks. This help guide provides clarification on some of the key aspects of your document.
When these terms are discussed independently of each other, they have separate meanings. Indemnity is a contractual obligation to repay an indemnified party (the indemnitee) any actual losses that party may incur. The implication of this is that the indemnitee must actually have incurred a quantifiable loss before the obligated party (the indemnitor) is bound to pay. Such losses normally occur where the indemnitee loses a lawsuit or receives a fine.
Hold harmless is similar to indemnity but goes further. Instead of just being responsible for actual losses, the indemnitor must assume all liability and costs that the indemnitee has incurred. This contractual duty remains even if there is no judgment passed or fine given. Even though there is a difference between indemnity and hold harmless, in practice most courts now consider them to be essentially the same thing.
Broad indemnity is the most extensive form of indemnity there is. With broad indemnity the indemnitor assumes all risk and liability no matter who is at fault. This form of indemnity is seen as the most beneficial for the indemnitee, but very risky for the indemnitor. The level of risk for the indemnitor is so high that some states, such as California, do not even allow this level of indemnity to take place. Other states will not allow broad indemnity for certain types of contracts.
Intermediate indemnity is the most common form of indemnity. With intermediate indemnity the indemnitor assumes liability if it has contributed to the fault. If the indemnitee is solely at fault, the indemnitor is not liable. However, if even partly at fault, the indemnitor still must assume all liability.
Limited indemnity offers the least protection to the indemnitee, and there are some that do not believe that it should even be a class of indemnity. Limited indemnity holds the indemnitor liable for the portion of fault they are responsible for. This form of liability would exist under tort law even without a release of liability agreement. However, some parties like to formalize this arrangement in writing.
The requirement for the indemnitor to actively defend against claims against the indemnitee varies from state to state. For example, the assumption in California is that the indemnitor will automatically have the responsibility of defending any claims, whereas in Illinois the duty to defend must be agreed to as a separate contractual obligation. By including this requirement, the language in LegalNature's release of liability agreement firmly places the duty to defend on the indemnitor. The defense language also requires the defending party to seek consent before settling any claims.
If the release of liability agreement is being executed in conjunction with another contract, the release of liability agreement should either be executed before or at the same time as the other contract. Once the release of liability agreement has been completed, simply have all parties sign and date to complete the document. Although not required, it is always a good idea to have the document notarized for extra protection.
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