Re: Hold Harmless clauses/Liability Kathryn Watkins 11 May 2004 10:56 EST
When we find ourself in the position that you describe, we preface the indemnification/hold harmless language with: "To the extent permissible under the laws of the State of Ohio and decisions thereunder..." It is not our preferred method of dealing with it (we'd rather use responsibility language or remain silent), but when sponsors won't budge this is what we will often do. Katie. ******************************** Kathryn Watkins, CRA Director, Sponsored Programs & Research Cleveland State University 2121 Euclid Ave., KB 1150 Cleveland, OH 44115 216-687-3630 / 216-687-9382 (fax) www.csuohio.edu/uored Valerie Seaquist To: xxxxxx@HRINET.ORG <xxxxxx@UAH. cc: EDU> Subject: Re: [RESADM-L] Hold Harmless clauses/Liability Sent by: Research Administratio n List <xxxxxx@HRI NET.ORG> 05/11/2004 11:25 AM Please respond to Research Administratio n Discussion List 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 ====================================================================== Instructions on how to use the RESADM-L Mailing List, including subscription information and a web-searchable archive, are available via our web site at http://www.hrinet.org (click on "Listserv Lists") ====================================================================== ====================================================================== Instructions on how to use the RESADM-L Mailing List, including subscription information and a web-searchable archive, are available via our web site at http://www.hrinet.org (click on "Listserv Lists") ====================================================================== ====================================================================== Instructions on how to use the RESADM-L Mailing List, including subscription information and a web-searchable archive, are available via our web site at http://www.hrinet.org (click on "Listserv Lists") ======================================================================