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.
The Foundation Celebrates 35 Years updated
10/07/15 11:15 AM
Launches Donation Campaign
The National Credit Union Foundation (the Foundation), the primary national philanthropic program provider, fundraiser, and grant-maker for America’s nearly 7,000 credit unions, celebrates its 35th anniversary this month of October.
COMPLIANCE ROUNDUP: ALERTS, GUIDANCE updated
10/06/15 09:09 AM
Plus, Flood Insurance Webinar
Federal credit unions can continue to make payday alternative loans (PALs) under changes to the Military Lending Act (MLA), which became effective Thursday, according to the Credit Union National Association (CUNA).
VISIT FROM THE DOMINICAN REPUBLIC updated
10/06/15 03:21 PM
Delegates visit California
As reported earlier this week in the California and Nevada Credit Union Leagues’ Advocacy Blog, a WOCCU delegation from the Dominican Republic visited the League to learn about best practices for running an advocacy program.
3 WAYS TO SUPPORT LOCAL CMN KIDS updated
10/05/15 03:26 PM
Events on CU Day, and at 'REACH'
In the coming weeks, there will be three ways to support your local Children’s Miracle Network Hospitals. First up is Shop for Miracles on Oct. 15. That will be followed by a couple of events at the California and Nevada Credit Union Leagues’ REACH Conference in November in Palm Desert.
PAY TRIBUTE TO THOSE WE HAVE LOST updated
09/30/15 10:41 AM
During REACH 2015, the California and Nevada Credit Union Leagues will once again take a moment to honor and remember credit union leaders who had a significant impact on their credit union or credit union organization and passed away in the last year.
2016 'GAC' ROOM BLOCK OPENS updated
09/29/15 08:48 AM
CUNA-League Event: Feb. 22-25
The Credit Union National Association’s (CUNA) 2016 Governmental Affairs Conference (GAC) room block has officially opened, which means those who plan on attending can reserve their lodging early.
‘RBC STOP-STUDY ACT’ TO BE REVIEWED updated
09/29/15 08:17 AM
Committee Hearing This Week
Tomorrow, the House Financial Services Committee will review H.R. 2769, the Risk Based Capital Stop and Study Act—a bill that would halt the National Credit Union Administration’s (NCUA) risk-based capital proposal until further study is assessed.
NV REP. TITUS SENDS SUPPORT LETTER updated
09/25/15 09:41 AM
Member Business Lending Rule
As reported earlier today in the California and Nevada Credit Union Leagues’ Advocacy Blog, members of Congress from the California and Nevada Congressional Delegation continue to show their support for credit unions. This morning, Rep. Dina Titus (D-Las Vegas) submitted a support letter to the NCUA for their proposed revisions to the member-business lending (MBL) regulation. Titus joins 8 other Members of Congress from our two states who have responded favorably to MBL rule.
CALIFORNIA LEGISLATURE ADJOURNS updated
09/22/15 10:31 AM
Recap of CU Accomplishments
The California Credit Union League reported a successful year for credit unions as the California Legislature adjourns for the 2015 legislative session. The League advanced data security legislation, helped defeat two high-profile bills that would’ve been detrimental to credit unions, and garnered several other legislative accomplishments during the past year.
RISK-BASED CAPITAL 2 updated
09/18/15 11:09 AM
Rep. Vargas Leads New Comments
As recently reported in the California and Nevada Credit Union Leagues’ Advocacy Blog, last week on Capitol Hill, Rep. Juan Vargas (D-Chula Vista) led 11 of his colleagues from California and Nevada in sending a letter to the NCUA raising on-going concerns with the agency's risk- based capital (2) proposal. The Vargas letter was initiated by a request from the CA & NV Leagues and was advocated as a top priority during the Leagues' Hike the Hill to Washington, D.C. last week.
NCUA Redefines Small CUs updated
09/18/15 10:17 am
Threshold Raised to $100MM in Assets
The NCUA Board voted unanimously in favor of four supervisory actions Thursday, including one that will change the definition of “small entity” in the Regulatory Flexibility Act from credit unions with less than $50 million in assets to credit unions with less than $100 million in assets.
At its open board meeting, the agency first approved the expansion of the community charter for the $342 million Charlotte Metro Federal Credit Union in Charlotte, N.C., to include 10 counties in the Charlotte metro area. The credit union previously served Mecklenburg County only.
CONGRESSIONAL SUPPORT OF MBL GROWS updated
09/17/15 08:46 AM
Increased CA/NV Backing of H.R. 1188
As reported earlier today in the California and Nevada Credit Union Leagues’ Advocacy Blog, the California and Nevada delegations have made big gains in terms of support for H.R. 1188, legislation to raise the member business lending cap.
NEW WCMS TRUSTEES updated
09/17/15 02:52 PM
Janclaes, Rivera Joining Board
Partners FCU President and CEO John Janclaes and SkyOne FCU President and CEO Eileen Rivera will be joining the Western CUNA Management School (WCMS) Board of Trustees.
CU LEADERS MEET WITH ASM. BILL DODD updated
09/16/15 09:28 AM
Address Current/Upcoming Legislation
As recently reported in the California and Nevada Credit Union Leagues’ Advocacy Blog, Travis Credit Union hosted a gathering with Assemblyman Bill Dodd (D-Napa) the team at Travis educated Asm. Dodd on their suite of financial literacy and community empowerment programs to help all including the underserved. The group also addressed current and upcoming legislative issues impacting credit unions including data security, EMV implementation, PACE lending reform, and state charter enhancements.
'HIKE THE HILL' MAKES IMPACT FOR CUs updated
09/15/15 12:12 PM
Plus, CU T-Shirt PAC Fundraiser
Last week credit unions from California and Nevada "hiked the hill" in the halls of Congress, advocating for regulatory relief, support of the National Credit Union Administration’s (NCUA) member business lending rule, and other important items.
REGS DISCUSSED AT NCUA, CFPB MEETING updated
09/15/15 01:31 PM
Officials Listen to CU Leaders
The second day of last week’s “Hike the Hill” event in Washington, D.C. was devoted to regulatory issues, where credit union leaders met with representatives from the National Credit Union Administration (NCUA) and Consumer Financial Protection Bureau (CFPB).
CUs GO CASUAL FOR KIDS updated
09/14/15 12:58 PM
Miracle Jeans Day Nets Money for CMN
On Sept. 9, staff at credit union branches throughout California and Nevada traded in their normal work attire for jeans—and raise money for Children’s Miracle Network Hospitals. It was all part of Miracle Jeans Day—a day set aside to go casual for kids.
CUs ACTIVATE FIRE RELIEF FUNDS updated
09/14/15 12:22 PM
Monies to Help California Victims
Several fire relief funds administered by credit unions, the California Credit Union League, and other organizations have been created to help communities ravaged by the Valley Fire in Middletown, CA (90 miles north of San Francisco) and other fires in Northern California.
LEGAL FIGHT ON CAs SURCHARGE BAN updated
09/14/15 11:14 AM
Credit Unions Represented
As recently reported in the California and Nevada Credit Union Leagues’ Advocacy Blog, last week CUNA filed an amicus brief in support of California Attorney General Kamala Harris’ defense of the CA law prohibiting merchants from imposing a surcharge on consumers who chose to use a credit card in lieu of payment by cash, check or similar means.
CALIFORNIA LEGISLATURE ADJOURNED updated
09/14/15 10:16 AM
Session Ends with Passage of Resolution AJR 25
As recently reported in the California and Nevada Credit Union Leagues’ Advocacy Blog, both houses of the California legislature adjourned their regular session for the year on Saturday, September 12. The Senate and the Assembly are gone until January unless they decide to convene for a special extraordinary session to meet on healthcare and transportation funding.
SOCIAL MEDIA PLAN = LOAN GROWTH updated
09/11/15 12:09 PM
Contribute To The Bottom Line
Explore a proven social media plan that has been used by credit unions nationwide to significantly grow their loan portfolios and contribute to the bottom line.
MBL RULE MATZ RESPONDS TO CONGRESS updated
09/11/15 11:33 AM
NCUA Chair Sends Response Letters
As recently reported in the California and Nevada Credit Union Leagues’ Advocacy Blog, Debbie Matz, Chair of the National Credit Union Administration has begun sending replies to the 8 Representatives of the California Congressional Delegation who wrote letters in support for the proposed member-business lending rule.
GET READY TO CRASH THE GAC 2016 updated
09/10/15 12:31 PM
Application Deadline October 31
Represent your credit union and the California and Nevada Credit Union Leagues at Crash the GAC 2016. The Cooperative Trust, in partnership with Credit Union National Association (CUNA), is now accepting applications for Crash the GAC 2016. Those interested in the program—which provides scholarships for up-and-coming credit union professionals to attend the CUNA Governmental Affairs Conference—must submit their applications by October 31, 2015. New this year, applicants will be required to submit a 60 second video instead of an essay.
LEAGUE DEFEATS BANKRUPTCY BILL updated
09/10/15 08:59 AM
Harmful Bill Thwarted
As recently reported in the California and Nevada Credit Union Leagues’ Advocacy Blog, the League's advocacy team defeated SB 308 (Wieckowski D-Fremont) which would have dramatically increased the amount of assets a debtor could shield through bankruptcy leaving credit unions and their members holding the bag. The bill received only 21 votes on the Assembly floor vote—20 votes short of what the bill needed for passage. The League's advocacy team will continue to monitor this and other legislation through the last day of this year's legislative session on September 11th.