Re: What does "hold harmless" mean?

[Alan Edelson <amedelson@topnet.net>]

The practical import of the term "hold harmless" in a contract will
obviously be influenced by the context in which it is placed. But a common
example can be found in contracts entered into between publishers and
professional societies who own and operate a journal, and who wish to
engage the services of the publisher to perform the redactorial, proof
reading, typesetting, printing, marketing, and ad sales involved.  The
publisher pays the society a share of profits or a royalty on revenues.
Typically the society has total and absolute control over the editorial
content of the journal, and the appointment and supervision of the
journal's editor-in-chief.  It is therefore deemed reasonable for the
contract to provide that the society-owner of the journal will agree to
hold the publisher harmless from any law suits which may arise as a direct
result of the publication of the contents of the journal (provided, of
course, that the publisher accurately prints the material submitted to
it.)  This requires the society to indemnify the publisher for the costs
of defending itself in case of a suit, whether such a suit is successful
or not, and when successful, to pay any judgments ordered by the courts.
The intent of the "hold harmess" clause in this instance is not to enable
the publisher to evade its responsibilities, but rather to place them on
the shoulders of the party who by the terms of the contract and by the
party's actions controls the content of the journal.

Examples of situations that may result in suits include the publication of
articles containing copyrighted materials for which permission to reprint
was never asked or given, publication of statements deemed to be libelous,
obscene, infringing on the privacy of parties (such as the publication of
photographs of patients without the patient having given written
permission to do so), and increasingly, squabbles between investigators
whose names might have been improperly removed or added to the list of
parties authoring a paper.

One cannot say for sure how the term would apply in a given license, but
it probably is intended to protect the licensor from becoming the target
of suits, frivolous or otherwise, which were triggered by actions of the
licensee or by those given access to licensed materials by the licensee,
and which presumably involve some violation of the terms of the license.
Clearly, such licensing agreements, having been drafted by the licensor's
attorneys, will try to provide as broad a protection as possibe, and will
be based on the past experiences of the licensor or others in similar
positions, as recorded in case law. Much of this will sound far fetched to
the licensee, who may not have had access to the myriad of instances in
which such suits have arisen in the past. Finally, it should be mentioned
that the thorniest part of the negotiation of almost any business contract
is the section containing these protection clauses. In the end, each side
must decide what the probabilities of being caused harm realistically are,
and they then must make a business decision as to how much protection they
really need or should be able to avoid giving in order to conclude a
responsible deal.

Alan M. Edelson, Ph.D.
(Retired) President, J. B. Lippincott Company

_________

Ann Okerson wrote:

> We thought our readers would be interested in this question from a
> reader, who inquires what the "hold harmless" clause in a license
> means.
>
> Sincerely,
> The Moderators
>
> ---------- Forwarded message ----------
> Date: Wed, 28 Jul 1999 08:15:45 -0400 (EDT)
> From: Cecile Pierre <pierre@bius.jussieu.fr>
>
> Submitted on: Wednesday, July 28, 1999 at 08:15:45
> --------------------------------------------------------------------
>
> A question of vocabulary in electronic licenses:  What does "hold harmless
> from and against" exactly mean?  Is it a question of responsibility, i.e.,
> we recognize that the publisher is not responsible in any way?  Is it also
> a question of agreeing to indemnify, so that they don't lose any money and
> the process is harmless for them?  Does "from and against" mean that not
> only the library cannot hold the publisher responsible, but also that
> should a claim arise against them, we agree to help them, or possibly be
> the ones responsible ultimately?  Thank you for your help.
>
> --------------------------------------------------------------------
>
> Rodney Stenlake, Esq., of LIBLICENSE,  responds:
>
> It is difficult to give a complete and precise answer concerning the
> meaning of the term "hold harmless from and against" without knowing the
> precise context of the phrase in the agreement.  Generally, however, you
> are right that "hold harmless" means that one party agrees not to hold the
> other responsible for certain acts or under certain circumstances. (e.g.,
> acts of god, events beyond the control of the parties, unforseen
> circumstances).  Usually the agreement should spell out what those acts
> and/or circumstances are in some specificity.
>
> As for indemnification, that usually must be specifically stated in the
> agreement.  The term hold harmless should not in itself impose an
> obligation to indemnify.  Nor it is likely that the use of the pharse
> "hold harmless" by itself would impose any additional liablity on a party
> or cause one party to automatically be liable for the acts of another.
> Indemnification clauses often require the parties to cooperate in any
> indemnified claims, but again that is usually specifically stated in the
> agreement.
>
> ----end of reply------