Whether the lawsuit is by an opportunistic patent holder merely seeking a quick buck (such as patent trolls) or the lawsuit is based on legitimate infringement of a patent, such lawsuits represent a significant threat to any defendant. Patent suits are, by nature, extremely expensive and time consuming.
When the focus of the patent infringement is within a product or service provided to or on behalf of a credit union by a vendor, protecting the credit union from these and other types of lawsuits often depends on a properly drafted indemnification clause.
A credit union should obtain a copy of the proposed contract at the beginning of the due diligence/negotiation process as opposed to waiting until the business terms are agreed upon. Attorneys stress that contract terms are as equally important as the business terms and should be negotiated in unison.
A credit union should also inform vendors from the onset of the negotiation process that it expects the vendor to "stand behind" its product and/or service. This means the credit union should demand indemnification from the vendor (or its agents, employees, subcontractors) not only for patent infringement, but also copyright and trademark infringement.
Furthermore, the credit union should demand indemnification against claims made by any third party which arises due to the vendor's (or its agents, employees, subcontractors) breach of the contract, negligence, and/or willful misconduct.
Elements of a Good Clause
The key to a good, properly drafted indemnification clause is to:
Limitation of Liability
Care must be taken if the contract has a limitation of liability section. Without a "carve out" for indemnification obligations, a vendor's maximum indemnification obligation would be up to the limitation negotiated.
This could leave the credit union liable to the third-party claimants for all amounts in excess of the limitation, even though the credit union had nothing to do with the issue under which the claim was made.
Therefore, limitation of liability sections are equally important to review and negotiate, as are indemnification clauses.
Recent lawsuits serve as a reminder to credit unions of the importance of having contracts reviewed by an attorney, not only for proper indemnification clauses, but to help limit credit union liability.
PAC GOLF TOURNAMENT RAISES $59K updated
05/21/13 10:13 AM
More Than 165 Attendees
The annual Multi-Chapter PAC Golf Tournament in Valencia, CA attracted approximately 165 credit union CEOs, executives, and volunteers—raising a grand total of $59,055.
IS HOUSING JUST RIGHT, OR TOO HOT? updated
05/17/13 12:36 PM
Economist Looks at 'Bubble' Talk
The “story of the year” in 2012 in California and Nevada was the housing market recovery, one that continued in the first quarter of 2013. Median prices surged by roughly 20 percent last year—a rise that was fueled by extraordinary demand by investors.
SEEKING CU HELPS FOR MEDIA PROJECT updated
05/17/13 03:09 PM
Member Survey Features Taxation Questions
The California and Nevada Credit Union Leagues’ new media outreach project, "Consider This," was launched in February with the help of 15 credit unions who agreed to participate in the program’s pilot phase. The Leagues are now asking for YOUR credit union's participation in a new member survey.
CO-OP LAUNCHES NEW MOBILE SERVICE updated
05/17/13 02:31 PM
Enhance Member Control of Card Usage
CO-OP Financial Services has joined forces with Ondot Systems to launch a new mobile CO-OP-branded service that will give credit union members greater control over their card usage through the convenience of their smartphones. The service should be available by the end of 2013.