Top Tips on Drafting Indemnity Provisions


How should the drafting of an indemnity clause be approached?

Determine up front what losses/claims the party is to be indemnified for.
Address specifically, if at all possible, the issue of the indemnitee’s negligence - if it is to be an all encompassing indemnity make sure it refers to negligence. Whilst parties may wish to avoid specific will avoid uncertainty later.
Cross check the insurance provisions - is the insurance cover consistent with the extent of the indemnity? If not, it may give rise to interpretation issues unless the indemnity clause is absolutely clear in its terms.
If the party paying up is to do so on claims, not just losses (without a need for underlying proof of liability for such claims), address this and determine whether a name borrowing provision is also required.