Should you agree to mutual indemnification December 10, 2025

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Should you agree to mutual indemnification
December 10, 2025
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Should you agree to mutual indemnification

Ken,
   My business partner and I have been seeing many valuable comments in your posts about importance of having properly worded indemnity and insurance clauses. In as much we would love to have our Standard Commercial Service Agreement form (which we gladly purchased from K&K) signed each time, from time to time we are bound to accept a contract issued by a general contractor, whereby their usually elaborate and one-sided indemnity clause would protect them, but not us. Would adding the following stipulation to their contract be sufficient to equally protect us as well?
   “Notwithstanding the foregoing, it is expressly agreed between CONTRACTOR and SUBCONTRACTOR, that Indemnification and Hold Harmless paragraphs, in their entirety, shall be fully reciprocal and binding both parties equally.”
   We are a Concierge member.
Janusz
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Response
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   Your suggested solution is not what I'd recommend; in fact I avoid mutual indemnity whenever possible, as will elaborate below.
   You are a Concierge Client and one of the most popular benefits of the program is the free half hour each month for contract negotiations. Most of those negotiations are with contracts presented by GCs or Management Companies, and they all share a common issue, an indemnity provision. That provision must be modified, and making it mutual doesn't help.
   A brief background. For many reasons alarm companies do not indemnify their customers; it's just that simple. In fact, the indemnity would be antithetical with the rest of the Standard Form Agreement protective provisions, because not only are you not indemnifying but you are contracting away liability for all and any damages or loss, caused by others or even if caused by your negligence. Therefore offering indemnity would not only negate the protective provisions by expand the risk and liability beyond the customer to claims by third parties if they sought relief from the customer.
   I am practicing a long time and I confess I do not see how mutual indemnity actually works, at least not in the practical world. Seems to me it completely vitiates indemnity. In mutual indemnity each party would agree to indemnify for their contribution to the loss. Easier said then done for a couple of reasons. Many if not most times it's not clear who or to what degree a party contributed to a loss. More problematic is that a determination of fault or degree would require a finding by a judge after trial. Since most cases are resolved prior to trial, and even fewer making it through the end of the trial to decision or verdict, the resolution on indemnity will not be reached. The mutual indemnity will not play a part in the resolution of the case.
   If any of you weekend lawyers have a different take on mutual indemnity please enlighten me. Even better, have your high priced lawyers explain it to you or all of us.
   When negotiating GC or "vendor" agreements we need to be practical and not have an inflexible position. Some jobs are more valuable and important than others and accommodations often need to be made, which generally means, you need to be willing to take on a bit more risk to get the work. But you still have to be mindful that you are not [should not] willing to "risk the farm" for one job or opportunity. That is especially so when skilled legal negotiation can soften, modify, the GC's and vendor agreements when it comes to indemnity and a few other provisions.
   Generally you will find that when it comes to installation we can be more accommodating and agree to most of the GC and vendor agreement terms. Holding alarm companies to the same risk standards as other contractors coming onto property to perform their services seems fair to me. However, you must be vigil when contracting for the after-install services; you must not significantly increase your risk when it comes to the after-install services, and for a few reasons. One, those you subcontract the service to will not appreciate the increase in risk and exposure; your once in a lifetime job or connection is still just one more account to them, and rightly so. Two, most of the risk and claims, arise from after-install services, such as monitoring. Typically the loss comes after the system is finished and there has been service or monitoring in place.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com