Basics of Intellectual Property Indemnification


Mental Residence Indemnity – Generally

Indemnity clauses (from time to time referred to as hold harmless clauses, indemnification agreements, or indemnity agreements) are popular in agreements where one particular bash needs to shift particular threats to another bash. In intellectual house indemnification clauses, the chance is frequently associated with patent infringement, trademark infringement, copyright infringement, trade key misappropriation, software program problems, or some other intellectual house (IP) relevant chance. An indemnity clause may well be restricted to indemnification or it may well also incorporate the obligations to “protect” and/or “hold harmless” the other bash. Mental house indemnity clauses are notably harmful to distributors simply because the fees to protect a typical IP assert could significantly exceed the payments to the vendor under the settlement.

Mental Residence Indemnity – Boundaries on Legal responsibility

Simply because the prospective legal responsibility for indemnification obligations, notably for IP indemnity promises, can be so large, distributors will commonly try to restrict or cap their legal responsibility. Just one way this can be accomplished is including a limitation of legal responsibility clause in the settlement and expressly making use of that clause to cap or restrict the indemnification clause. For illustration, if the settlement provides a $fifty,000 payment to the vendor to acquire and supply a software program option, the vendor could possible be liable for significantly additional if it is demanded to protect a third-bash copyright infringement assert. Nevertheless, if the limitation of legal responsibility clause boundaries the vendor’s total legal responsibility to payments in fact obtained under the settlement and that limitation applies to the indemnification clause, then vendor’s legal responsibility is potentially capped at $fifty,000 even even though the litigation of the assert could price $100,000s. A lot of purchasers with leverage will need unlimited or uncapped intellectual house indemnification. A prospective compromise is for the purchaser and vendor to agree that the indemnification legal responsibility will be capped at some numerous of the vendor payments under the settlement.

IP Indemnity – Representations and Warranties

Mental house indemnification clauses often incorporate representation and warranties provisions, which provide a result in for indemnification obligations. For illustration, software program purchasers/licensors often need a representation and guarantee provision that the software program deliverable is cost-free from promises of infringement by third functions and additional that no third-bash resources or resources for which the developer does not have permission have been incorporated into the software program deliverable. These provisions are meant to shield the purchaser/licensor in the event a third bash later on tends to make a assert for copyright infringement or trade key misappropriation. If this happens, the purchaser/licensor will possible try to power the developer to protect the assert and pay out for any damages or settlements.


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