Defend, Hold Harmless, and Indemnification Contract Clauses
Photographers often are asked to sign contracts that include defend, hold harmless and indemnification clauses. Should you agree to them? That depends.
Contract language related to these defend, hold harmless and indemnification agreements typically is something like this: Photographer shall defend, indemnify, and hold harmless The Company from and against any action, suit, claim, damages, liability, costs and expenses (including reasonable attorneys’ fees), arising out of or related to the use of the photo by The Company.
Your agreement to “defend” a company means that you must pay for its legal representation against claims and lawsuits, which can include expensive attorneys’ fees and high litigation costs. While many companies will want to choose their legal counsel, you will have to pay for those fees as long as they are reasonable.
When you agree to “indemnify” a company, you must pay for any financial loss it incurs, such as a settlement or a court award, either directly or through reimbursement. “Hold harmless” means that you will not make a claim against a company if claims are made against you for events related to the agreement.
Agreeing to these contract provisions can be costly in the long run. In reality, however, a company rarely will seek defense costs or indemnification from the photographer unless you have done something wrong and you have significant assets worth seizing. Nevertheless, you should accept these types of risks only when you understand them, given any special facts and circumstances, and are willing to accept the consequences.
Take my advice; get professional help.
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