--- title: "Exculpatory vs. Indemnity: What is Your Clause?" description: "I am sure almost every adult in the 651 area code has agreed to a clause that starts out something like; \"You agree do indemnify and hold harmless Corporation X, its officers, employees...from any and all acts, errors, and omissions of any and all kind...\" Even though agreed, to, most people, including most lawyers I expect, do not actually read the entire clause." --- [Dan's Desk](https://www.gallatin-law.com/blog/author/dan-gallatin) - [lawyer](https://www.gallatin-law.com/blog/tag/lawyer) - [hugo](https://www.gallatin-law.com/blog/tag/hugo) - [MN](https://www.gallatin-law.com/blog/tag/mn) - [law](https://www.gallatin-law.com/blog/tag/law) - [attorney](https://www.gallatin-law.com/blog/tag/attorney) - [legal](https://www.gallatin-law.com/blog/tag/legal) [Subscribe](https://www.gallatin-law.com/blog/exculpatory-vs-indemnity-what-is-your-clause#) 03/22/2017 # Exculpatory vs. Indemnity: What is Your Clause? - - - - - [mailto:?subject=Exculpatory%20vs.%20Indemnity%3A%20What%20is%20Your%20Clause%3F&body=https%3A%2F%2Fwww.gallatin-law.com%2Fblog%2Fexculpatory-vs-indemnity-what-is-your-clause](mailto:?subject=Exculpatory%20vs.%20Indemnity%3A%20What%20is%20Your%20Clause%3F&body=https%3A%2F%2Fwww.gallatin-law.com%2Fblog%2Fexculpatory-vs-indemnity-what-is-your-clause) I am sure almost every adult in the 651 area code has agreed to a clause that starts out something like; "You agree do indemnify and hold harmless Corporation X, its officers, employees...from any and all acts, errors, and omissions of any and all kind..." Even though agreed, to, most people, including most lawyers I expect, do not actually read the entire clause. So, just what is that clause - exculpatory or indemnifying? The Court of Appeals just addressed that issue in the context of a health club membership agreement. The Black's Law dictionary of an exculpatory clause, the definition cited by the Court of Appeals, is “[a] contractual provision relieving a party from liability resulting from a negligent or wrongful act.” An indemnification clause on the hand is a"contractual provision in which one party agrees to answer for any specified or unspecified liability or harm that the other party might incur.” Functionally, exculpatory and indemnification clauses are the same. They function to have someone else pay. The primary difference between the two types of clauses is the standard of review for enforceability against the benefitting party as indemnification clauses can shift liability to even innocent parties, a socially unpalatable proposition. To be enforceable, an indemnification clause is enforceable if: 1. The terms of the agreement are expressed in clear and unequivocal terms; and 2. The agreement is not contrary to public policy. To the point, the Court of Appeals ruled that in the situation where a health club employee dropped a barbell on a member's head, the indemnification clause was unclear to the extent that it failed to address negligence by the health club's employee. Due to that ambiguity, the indemnification clause was *unenforceable* under these facts and the injured patron's suit was permitted to proceed. This is a splendid example of the need for thoughtful legal counsel in seemingly black and white cases. I am here to be your thoughtful counsel. - [attorney](https://www.gallatin-law.com/blog/tag/attorney), - [business](https://www.gallatin-law.com/blog/tag/business), - [employee](https://www.gallatin-law.com/blog/tag/employee), - [Exculpatory](https://www.gallatin-law.com/blog/tag/exculpatory), - [hugo](https://www.gallatin-law.com/blog/tag/hugo), - [law suit](https://www.gallatin-law.com/blog/tag/law-suit), - [Exculpatory vs. Indemnity](https://www.gallatin-law.com/blog/tag/exculpatory-vs-indemnity), - [Indemnity](https://www.gallatin-law.com/blog/tag/indemnity), - [law](https://www.gallatin-law.com/blog/tag/law), - [lawyer](https://www.gallatin-law.com/blog/tag/lawyer), - [legal](https://www.gallatin-law.com/blog/tag/legal), - [minnesota](https://www.gallatin-law.com/blog/tag/minnesota), - [MN](https://www.gallatin-law.com/blog/tag/mn), - [negligence](https://www.gallatin-law.com/blog/tag/negligence), - [owner](https://www.gallatin-law.com/blog/tag/owner) ![Dan Gallatin](https://www.gallatin-law.com/hubfs/assets-mjfw/site%20images/Dans-Desk.jpg) ## [Dan Gallatin](https://www.gallatin-law.com/blog/author/dan-gallatin) Dan is a lifelong resident of Minnesota. Born in St. Paul, Dan spent many of his formative years growing up there before moving to White Bear Lake. After graduating from White Bear Lake, Dan spent four glorious years at the University of Wisconsin-Madison, earning a degree in two majors. Dan worked as a Senior Investigator at the Minnesota Department of Commerce for several years after graduating from college. During his final years Dan attended William Mitchell College of Law while still working full-time. During this exhausting 3 ½ year period Dan honed his skills in becoming an efficient, to-the-point legal practitioner. While at Madison Dan met his wife, Tonya, and together they moved to Minnesota to plant their roots. Dan and Tonya have two amazing, unique children and reside in Hugo. ### CONNECT WITH ME - ## Related Posts [09/21/2016 Trusts, Trustees, and Forum Non-Conveniens Every trust agreement I draft has a venue clause and a choice of law clause. That clause identifies where disputes are to be heard. Virtually every… Read Post ](https://www.gallatin-law.com/blog/trusts-trustees-and-forum-non-conveniens) [03/16/2016 Arbitration Agreement in Real Estate Purchase Agreements I have arbitrated many cases related to allegations that a home seller has failed to disclose a material fact in the course of the sale of a home. As… Read Post ](https://www.gallatin-law.com/blog/arbitration-agreement-in-real-estate-purchase-agreements) ### Subscribe Here! ```json { "@context" : "https://schema.org", "@type" : "BlogPosting", "author" : { "@type" : "Person", "name" : "Dan Gallatin", "url" : "https://www.gallatin-law.com/blog/author/dan-gallatin" }, "dateModified" : "2020-08-21T22:35:51.215Z", "datePublished" : "2017-03-22T05:00:00.000Z", "headline" : "Exculpatory vs. Indemnity: What is Your Clause?", "mainEntityOfPage" : { "@id" : "https://www.gallatin-law.com/blog/exculpatory-vs-indemnity-what-is-your-clause", "@type" : "WebPage" }, "publisher" : { "@type" : "Organization", "logo" : { "@type" : "ImageObject", "url" : "https://www.gallatin-law.com/hubfs/logos/Gallatin-Logo-654x84.png" }, "name" : "Gallatin Law, PLLC" } } ```