The language that was allowed in Mississippi was “To the extent authorized to do so under the laws of the State of Mississippi.”  During negotiations, it was divulged that the State does not authorize anyone to accept indemnification; thus, the agency/sponsor knew that the clause was null.  What was the purpose?  This allowed the clause to remain in the agreement which was required by the agency/sponsor while allowing the University to sign the agreement.  This might be something that you run past your legal.  Good luck!

 

 

 

Florida is in the same situation. Due to an “incident” we can no longer accept “to the extent allowed by applicable law” either. At one time, we could. We now cannot assume indemnity, period. Therefore, we go through the UCF Research Foundation as our work-around.

 

Jennifer

 

 

Jennifer Shambrook, Ph.D.

Director of Research Programs and Services

Office of Research & Commercialization

University of Central Florida

12201 Research Parkway, Suite 501

Orlando, FL 32826-3246

Phone: (407)823-0387

Fax: (407)823-3299

xxxxxx@ucf.edu

 

 

 

 

Following an “incident” in our state, our attorney general has issued an order to state institutions prohibiting us from signing ANY indemnification or hold harmless clauses, even if modified by “to the extent allowed by applicable law.”  Needless to say, it has made negotiations much more difficult for us.

 

Debbie

 

 

 

Excuse me for interrupting, but did the feds simply want general indemnification in this case?  I’m asking because we’ve been considering the particular language of the Accelerated Clinical Trial Agreement (ACTA), and the risk of subject injury on a clinical trial is one reason for being careful with indemnification.  The FDP subcontract work group is supposedly working on a template for clinical trials.

 

The current template for, “Subaward Agreements for Use Under Federally Sponsored Clinical Trials” only states:

 

[… Additional terms and conditions should be strictly limited to those absolutely required. Please do not include indemnification, law and venue clauses, as public institutions can never accept these conditions.]

 

If the ACTA is adopted, then would the indemnification below generally be acceptable for an institution with particular state limitations?

 

Subject to the limits and without waiving any immunities provided under applicable law (including constitutional provisions, statutes and case law) regarding the status, powers and authority of the Institution or the Institution’s principal(s), Institution shall indemnify, hold harmless and defend Sponsor, its directors, officers, employees and agents, (“Sponsor’s Indemnitees”) from and against only those third party Claims to the extent directly attributable to Institution’s negligence in its conduct of the Study. Notwithstanding the above, Institution shall have no obligation to indemnify Sponsor for any other Claims (including, but not limited to, infringement or product liability Claims).

 

thanks!  Doug Mounce, Grants & Contracts Manager, 206-839-1787

 

 

 

Thank you, Jennifer, for clarifying my statement so eloquently. When I said that indemnification, etc., does not bind the RF, that was a bit of a misnomer. Such clauses do, of course, bind the RF, but the RF is able to accept such restrictions. We have insurance and we evaluate the actual risk involved in the project. Nearly every agreement we accept/sign, save federal grants, has an indemnification clause of some sort, even when the project involves little or no risk. People are very risk averse.

 

Carolyn Elliott-Farino
Executive Director, Office of Research
Kennesaw State University &
Kennesaw State University Research and Service Foundation
3413 Kennesaw Hall, MD #0111

xxxxxx@kennesaw.edu

585 Cobb Avenue, Kennesaw, GA 30144
470-578-6381

 

Hi, Jennifer,

 

Thanks so much for that frank clarification--that was really eye opening!

 

Bill

 

 

William Sharp, Ph.D.
Assistant Director, Research Administration

Office of Research | The University of Kansas

2385 Irving Hill Road

Lawrence, KS  66045

(785) 864-7430 | xxxxxx@ku.edu 

 

 

 

Hi Bill and Carolyn, et al.,

 

We have the same issue here at UCF, we cannot accept indemnification language here at UCF under the state university banner, but can under our DSO, the UCF Research Foundation. We are in the same state university system as FSU.

 

While you are correct,Bill, we are just shifting the risk from one entity to the other, we are shifting from an entity that cannot accept the language to an entity that can. While indemnifying is not ideal, it is not a deal breaker for the RF and it is for the university.

 

Is it a possibility that the RF (or the Uni for that matter) could end up getting sued for large sums of money with the indemnification language in place? yes; is it a probability? Not likely.

 

It would be a shame to turn down an award and prohibit the work for proceeding just in the unlikely chance that we might be sued.

 

-Jennifer

 

 

 

Carolyn,

 

You make an interesting point that I am not entirely following.  Can you clarify how accepting indemnification, state law, etc. contract terms under the guise of the research foundation would not be binding for the research foundation?  Isn’t it just moving the problematic clauses from one entity to another? Or is that the point?  (Sorry I am not getting your point on the first swing of the bat, but I’m struggling like the Royals at this point in the season…)

 

Bill

 

 

William Sharp, Ph.D.
Assistant Director, Research Administration

Office of Research | The University of Kansas

2385 Irving Hill Road

Lawrence, KS  66045

(785) 864-7430 | xxxxxx@ku.edu 

 

 

 

 

Russell,

 

Why wouldn’t this be a reason to accept the award through your research foundation? As I recall, FSU’s research foundation accepts only non-federal awards and prefers to accept federal awards through the university. One of the reasons state universities establish research foundations is because of issues such as indemnification, state law, and insurance limits, none of which bind the research foundation. That would be a reason for your institution to make an exception. Not accepting the award when you have a mechanism through which you can do it makes no sense to me.

 

Carolyn Elliott-Farino
Executive Director, Office of Research
Kennesaw State University &
Kennesaw State University Research and Service Foundation
3413 Kennesaw Hall, MD #0111
585 Cobb Avenue, Kennesaw, GA 30144
470-578-6381

 

Has anybody had a federal agency refuse to limit indemnification to your state’s statutory sovereign immunity limits? If so, how did you handle it? Did you have to choose not to accept the award, to find someone else at the agency, or some other alternative? We have received but not yet accepted two awards that include a FAR clause requiring FSU to indemnify without limits. The federal agency is refusing to limit indemnification despite our sending of both the Florida statute and Attorney General Legal Opinion that limit indemnification to $300,000. Any guidance would be appreciated!

 

Thanks,

Russ

 

Russell D. Lentz

Associate Director

Sponsored Research Administration (Pre-Award)

Florida State University

874 Traditions Way

Tallahassee, FL 32306-4166

(850) 644-8649

xxxxxx@fsu.edu

 

 

Email secured by Check Point

<br> ======================================================================<br> Instructions on how to use the RESADM-L Mailing List, including<br> subscription information and a web-searchable archive, are available<br> via our web site at http://www.healthresearch.org (click on the<br> "LISTSERV" link in the upper right corner)<br> <br> A link directly to helpful tips: http://tinyurl.com/resadm-l-help<br> ======================================================================<br>

Email secured by Check Point

<br> ======================================================================<br> Instructions on how to use the RESADM-L Mailing List, including<br> subscription information and a web-searchable archive, are available<br> via our web site at http://www.healthresearch.org (click on the<br> "LISTSERV" link in the upper right corner)<br> <br> A link directly to helpful tips: http://tinyurl.com/resadm-l-help<br> ======================================================================<br>

Email secured by Check Point

<br> ======================================================================<br> Instructions on how to use the RESADM-L Mailing List, including<br> subscription information and a web-searchable archive, are available<br> via our web site at http://www.healthresearch.org (click on the<br> "LISTSERV" link in the upper right corner)<br> <br> A link directly to helpful tips: http://tinyurl.com/resadm-l-help<br> ======================================================================<br>

Email secured by Check Point

<br> ======================================================================<br> Instructions on how to use the RESADM-L Mailing List, including<br> subscription information and a web-searchable archive, are available<br> via our web site at http://www.healthresearch.org (click on the<br> "LISTSERV" link in the upper right corner)<br> <br> A link directly to helpful tips: http://tinyurl.com/resadm-l-help<br> ======================================================================<br>

Email secured by Check Point

<br> ======================================================================<br> Instructions on how to use the RESADM-L Mailing List, including<br> subscription information and a web-searchable archive, are available<br> via our web site at http://www.healthresearch.org (click on the<br> "LISTSERV" link in the upper right corner)<br> <br> A link directly to helpful tips: http://tinyurl.com/resadm-l-help<br> ======================================================================<br>

Email secured by Check Point

<br> ======================================================================<br> Instructions on how to use the RESADM-L Mailing List, including<br> subscription information and a web-searchable archive, are available<br> via our web site at http://www.healthresearch.org (click on the<br> "LISTSERV" link in the upper right corner)<br> <br> A link directly to helpful tips: http://tinyurl.com/resadm-l-help<br> ======================================================================<br>

Email secured by Check Point

<br> ======================================================================<br> Instructions on how to use the RESADM-L Mailing List, including<br> subscription information and a web-searchable archive, are available<br> via our web site at http://www.healthresearch.org (click on the<br> "LISTSERV" link in the upper right corner)<br> <br> A link directly to helpful tips: http://tinyurl.com/resadm-l-help<br> ======================================================================<br>

Email secured by Check Point

<br> ======================================================================<br> Instructions on how to use the RESADM-L Mailing List, including<br> subscription information and a web-searchable archive, are available<br> via our web site at http://www.healthresearch.org (click on the<br> "LISTSERV" link in the upper right corner)<br> <br> A link directly to helpful tips: http://tinyurl.com/resadm-l-help<br> ======================================================================<br>

Email secured by Check Point

<br> ======================================================================<br> Instructions on how to use the RESADM-L Mailing List, including<br> subscription information and a web-searchable archive, are available<br> via our web site at http://www.healthresearch.org (click on the<br> "LISTSERV" link in the upper right corner)<br> <br> A link directly to helpful tips: http://tinyurl.com/resadm-l-help<br> ======================================================================<br>