INDEMNIFICATION CLAUSES: IMPORTANT?
updated 04/05/13 08:41 PM
Limit Your CU's Liability
It has become increasingly common to learn of credit unions being targeted with patent infringement lawsuits.
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.
CHAPTER FORUM, RECEPTION ENGAGES CUs updated
10/27/14 06:55 PM
Networking and Awards after 'REACH'
Credit union chapter members from across California and Nevada gathered Oct. 23 at the JW Marriott (L.A. Live) in downtown Los Angeles to attend the 2014 Chapter Forum, which offered a full day of valuable networking and educational sessions for attendees who were eager to share individual stories about the work their chapters are accomplishing.
NEEN JAMES CHALLENGES CUs AT 'REACH' updated
10/27/14 04:17 PM
'Time is the New Currency'
By Wednesday afternoon, nearly 700 credit union CEOs, professionals, industry vendors, and guests had attended REACH 2014, the California and Nevada Credit Union Leagues’ Annual Meeting and Convention from Oct. 20-22 at the JW Marriott (L.A. LIVE) in downtown Los Angeles.
CFPB, FTC HOST DEBT COLLECTION FORUM updated
10/27/14 03:31 PM
Latino Consumers Discussed
The Federal Trade Commission (FTC) and Consumer Financial Protection Bureau (CFPB) recently hosted an all-day forum on “Debt Collection and the Latino Community,” which brought together consumer advocates, industry professionals, and regulators to discuss how debt collection issues affect Latino consumers, especially those with limited English proficiency (LEP).
FinCEN: QUARTERLY UPDATE ON 'SARs' updated
10/27/14 03:09 PM
Also, Mortgage Service Transfer Guidance
The Financial Crimes Enforcement Network (FinCEN) has issued its SAR Stats quarterly update, which provides information on Suspicious Activity Reports (SARs) filed through Sept. 30, 2014.