Jackie,
Our fall-back position is to preface the indemnification/hold-harmless
clause with "To the extent allowed by Alabama State law, . . .".
Val Seaquist
Office of Sponsored Programs
The University of Alabama in Huntsville
-----Original Message-----
From: Research Administration List [mailto:xxxxxx@HRINET.ORG] On
Behalf Of Jackie Givens
Sent: Tuesday, May 11, 2004 10:13 AM
To: xxxxxx@HRINET.ORG
Subject: [RESADM-L] Hold Harmless clauses/Liability
Colleagues . . . Would appreciate any input on the following issue:
One of our faculty wants to apply to a Business Funding Foundation that
requires that a "Grant Application and Agreement" must be signed, dated
and mailed to them. Proposals will not be considered until the signed
Agreement is received." The Agreement is basically, a contract signed
up-front, by the applicant agreeing to terms and conditions included in
most contracts with industry. We are a state institution that is unable
to accept indemnification/hold harmless clauses. In addition to the
language . . . "Applicant hereby irrevocably and unconditionally agrees
to defend, indemnify and hold harmless ______and its affiliates, etc. .
. . they have another clause that deals with " ______(their) liability,
if any, and applicant's sole and exclusive remedy for damages for any
claim of any kind whatsoever with respect to the application and grant
contemplated herein, and regardless of the legal theory, shall not be
greater than fifty ($50) U.S. dollars. Under no circumstances will ____
be liable for any special, indirect, incidental or consequential damages
of any kind for any reason whatsoever."
Any suggestions as to a way around this? We have a clause we use when
we can't be silent on the issue of indemnification, but it doesn't
appear to satisfy them.
"Subcontractor and Contractor agree that they will be responsible for
their own acts and the results thereof and shall not be responsible
for
the acts of the other party and the results thereof. Each party
therefore agrees that it will assume all risk and liability to itself,
its agents, or employees for any injury to persons or property
resulting
in any manner from conduct of its own operations and the operations of
its agents or employees under this subcontract, and for any loss,
cost,
damage, or expense due to any act or acts, negligence, or the failure
to
exercise proper precautions, of or by itself or its own agents or its
own employees, while occupying or visiting the premises under and
pursuant to this subcontract."
Appreciate any advice . . . May not be able to submit to this program .
.. this Agreement is, I think, recently developed/required by the funder
as a precautionary measure because of an incident in the past . . . but
they are open, generally, to alternative language . .. In this case,
however, they state: We are OK staying silent on governing law but
deleting 9 and 10(indemnification/hold harmless and $50 limit language
above) is a real problem for us, we just don't want to assume any
liability as part of the grant process. I would be surprised if Georgia
universities did not
agree to any contracts with this language in it since it is fairly
standard." Thanks . . Jackie
Jacqueline Givens
Director, Office of Sponsored Programs
Kennesaw State University
1000 Chastain Road, #0111
Kennesaw, Georgia 30144-5591
PHONE: (770) 423-6036
FAX: (770) 499-3620
WEBSITE: http://www.kennesaw.edu/osp
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