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Question
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Ken,
Once again thanks for your service.
When a customer (usually a commercial client) wants the alarm company to sign a wavier and indemnify and hold them harmless, from any liability caused or contributed to by us etc... can there be language in our contract that will some how void any waiver we sign even if signed after the client signed our contract?.
Also according to my insurance agent the language in the waiver's are written broadly and could go beyond our own insurance coverage, which would make us the alarm company directly liable for all kinds of legals fees to protect the customer.
Lastly if both parties signed each others waiver's who's waiver would prevail? How might that play out in a law suit?
Stay Safe,
Stuart Rosenberg ME, CET, President
Philadelphia Detection Systems Inc.
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Answer
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If you remember that "contracting away your liability, even for your own negligence" is the number one purpose of the defensive provisions in your contracts you will understand the risks involved if you decide to indemnify your subscriber. Your contract should in fact require the subscriber to indemnify you.
The Standard Form Contracts all have a proper indemnity provision. Unfortunately that provision is perhaps the single most objected to by subscribers. Indemnity by contract is limited by the terms of the indemnity. Another way to describe contractual indemnity is that it can be as broad and all encompassing so as to include every type of risk. Not all indemnity provisions are the same; you have to read the terms.
Contractual indemnity typically is an agreement to hold another harmless from claims, lawsuits and damages for specific or broad risks.
Your first question is answered in the negative. In most cases the last document signed will govern the terms of the transaction. I would not be comfortable relying on a provision in your contract that says it survives and supersedes a contradictory term in a subsequent contract. But, it sounds good and you can try it.
Your indemnity is not limited to your insurance coverage unless it specifically says so. In fact your contractual indemnity can be totally independent of your insurance coverage. If you want your indemnity to be limited to your insurance coverage then say so, and make sure you have insurance that will cover your contractual indemnity.
When two contracts contradict each other then a judge will have to reconcile them, and I would think the last document signed, at least knowingly, would prevail. You shouldn't be putting yourself in that kind of limbo; waiting for a dispute to reach a judge. By using and agreeing to sign only those contracts that are clear in terms you can avoid much uncertainty in litigation. Is it OK to agree to indemnify your subscriber? Well, it's better if your subscriber indemnifies you, but as long as you understand what you are signing, agreeing to and the consequences, it's your business decision.
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