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HOW DOES EDWARDS INDEMNITY COMPARE TO DMP INDEMNITY REQUIREMENT 
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Ken-
How does the Channel Partner renewal from Edwards for Fire Alarm equipment under their Vigilant line compare to DMP's indemnity provision that you have stated to be unfair to dealers?
    Here is the language:
20. INDEMNIFICATION.
The Channel Partner shall indemnify, defend and hold Edwards and its legal representatives, agents, employees, officers, directors, divisions, subsidiaries, affiliates, parents, and their successors and assigns harmless from and against
any loss, claim, liability, damage or expense (including reasonable legal expenses and costs) that Edwards or they may suffer, sustain or become subject to, as a result of any alleged act, omission or obligation of or by the Channel Partner or the Channel Partner’s agents arising out of (i) any alleged breach by the Channel Partner of any provision of this Agreement; (ii) the Channel Partner’s operation of its business pursuant to this Agreement; or (iii) the sale, installation, maintenance and/or monitoring of Products. Subject to the immediately following sentence, the Channel Partner will indemnify hereunder for all expenses (including reasonable legal expenses and costs) as they are incurred in connection with investigating or defending any such action or claim, whether or not in connection with pending or threatened litigation in which the entity is a party.  Notwithstanding anything herein to the contrary, the Channel Partner shall not have any indemnification obligation hereunder for any claims to the extent arising out of the gross negligence or intentional misconduct of Edwards or any
Product manufactured and sold by Edwards to Channel Partner hereunder which is determined by a government agency or court having jurisdiction to have a manufacturing or design defect.
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RESPONSE
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    In a few words, all the difference.  The Edwards indemnity is actually acceptable.  Why?  Let's look at what indemnity covers: 

  • act, omission or obligation of or by the Channel Partner
  • Channel Partner’s operation of its business pursuant to this Agreement
  • the sale, installation, maintenance and/or monitoring of Products

    If the indemnity provision ended there then it would be unfair to dealers, just like DMP's [which is worse for the dealer].  But it doesn't end there.  This is what follows, and it's what makes the indemnity less offensive to dealers, at least to me.  
    "Notwithstanding anything herein to the contrary, the Channel Partner shall not have any indemnification obligation"

  • for any claims to the extent arising out of the gross negligence or intentional misconduct of Edwards 
  • any Product manufactured and sold by Edwards to Channel Partner hereunder which is determined by a overnment
  • agency or court having jurisdiction to have a manufacturing or design defect.

    The obvious problem with this exception is that the dealer may still have to defend since Edwards manufacturing or defect design may not be determined until after a trial.  
    Keep in mind that DMP's indemnity reads quite differently.  Here is what it covers:

  •  "any failure of the products to detect and/or warn of the danger for which the products were designed or any other failure of the products whether or not such damages are caused or contributed to by the sole or joint negligence or fault of ... [the manufacturer]."  
  • "Buyer assumes all liability for and agrees to indemnify and hold DMP harmless against and defend DMP from, any and all suits, claims, demands, causes of action and judgments relating to damages, whether for personal injury or to personal property, suffered by any person, firm, corporation or business association, including but not limited to, Buyer’s customers and/or users of the products because of any failure of the products to detect and/or warn of the danger for which the products were designed or any other failure of the products whether or not such damages are caused or contributed to by the sole or joint negligence or fault of DMP."

    As us litigation attorneys like to say from time to time, "be guided accordingly."
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