Is this indemnity clause unreasonable?

Discussion in 'Legal' started by doctorzogg, Jul 17, 2018.

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  1. doctorzogg

    doctorzogg UKBF Newcomer Free Member

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    Hello all.

    I would like your learned opinions on a clause in a tender that we are interested in. Do you think this is a reasonable clause to have in a contract? As I read it, it puts all the liability on the contractor, even for acts or failures to act, of the client.

    The Contractor shall fully indemnify [The Client], its servant and agents against all actions, claims, demands, costs and expenses, including legal expenses incurred by or made against [The Client], its servant and agents in respect of any loss of or damage to property or personal injury (including death) resulting directly or indirectly from anything done or omitted to be done under the contract.

    Is this a clause that we could ask to be omitted or amended, as it is too unreasonable? As I see it, if the client was to make a decision that caused an accident, they would have no liability.

    Thanks

    Matt
     
    Posted: Jul 17, 2018 By: doctorzogg Member since: Oct 14, 2015
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  2. OMGVape

    OMGVape UKBF Regular Free Member

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    I see it as you will only be in the clag if you fail to do something in the contract.
     
    Posted: Jul 17, 2018 By: OMGVape Member since: Jan 21, 2018
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  3. Bob Morgan

    Bob Morgan UKBF Ace Free Member

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    The Clause can be termed as ‘Unreasonable.’ It is also undefined in terms of Scope, Term and Limitation. I would also suspect that the terms ‘Servants and Agents’ have not been qualified either.

    It also comes across as a rather ‘Naïve Cop-Out’ on the part the Client/Employer! – “Should I get sued by an End User, I will still have my hand in the Contractor’s Pocket!” It also begs the question of “Why are they not using a Standard Form of Agreement?” The simple answer here is that Standard Forms would NOT contain such Clauses!

    In my own case, I am always suspect of Client/Employer Agreements – So are my Professional Indemnity Insurers! Should any Client/Employer Proposal contain expressions such as “The Architect shall Warrant and Guarantee . . .” or “The Architect shall indemnify the Employer . . .” we are duty bound to refer it to our PI Insurers. Commonly, they will request that such clauses are either dropped or amended substantially – Otherwise, their response is one of “Sign this and you are on your own!”

    When challenged, Clients/Employers will often remark, “This was put together by our EXPERT Legal Team, and no one has ever challenged it before!” In such instances, best advice is to ‘Walk Away!’
     
    Posted: Jul 18, 2018 By: Bob Morgan Member since: Apr 15, 2018
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  4. obscure

    obscure UKBF Ace Free Member

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    But the clause quoted doesn't say "anything done by the OP under the contract"... it says "anything done under the contract" - which means anything done by anyone. So if the client did something under the contract that resulted in the client being sued the OP would (unfairly) be liable.
     
    Posted: Jul 18, 2018 By: obscure Member since: Jan 18, 2008
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  5. Newchodge

    Newchodge UKBF Big Shot Free Member

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    The contract is, presumably (a problem), the contract in which the clause is contained. Which is the contract between the Client and the Contractor. Which will specify what the Contractor is required to do under the Contract. If, for example, the Client, under the Contract, is to arrange for the site to be properly scaffolded, that would be work carried out by the Client's Agent (probably). If the Client's Agent erected scaffolding incorrectly, the Contractor would be liable. Which cannot be right.

    OP if the words 'by the contractor' were added between 'done' and 'under the contract' it may be more reasonable. But if you are seriously interested in the tender I would pay for professional advice.
     
    Posted: Jul 18, 2018 By: Newchodge Member since: Nov 8, 2012
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  6. doctorzogg

    doctorzogg UKBF Newcomer Free Member

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    Posted: Jul 18, 2018 By: doctorzogg Member since: Oct 14, 2015
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