The Fine Print

I like to eat lunch at a local national sandwich shop. Every time I order, they ask if I am a rewards member and I say no. I decided to check the program and found in their terms and conditions an indemnification clause requiring I defend and hold them harmless from any loss they sustain while I am in their store. I declined to do so. There is no option to negotiate terms. I think that was called in law school an “adhesion” clause. Some years ago my wife and I made an offer to buy a small vacation home. We signed a standard real estate offer contract. The selling agent came back with additional clauses the seller required as the property had been the subject of a federal loan foreclosure. One of the clauses required us to indemnify and hold the federal government harmless for any loss associated with the foreclosure action. What? The selling agent assured us that “everyone” signs such clauses with no problem. We declined. Last year some friends asked us to accompany them on a European river boat cruise. Included in the terms and conditions was an indemnification and hold harmless clause for any loss the company incurred while we were on their boat. We declined that and did not take the trip.

I have refereed soccer for over 40 years. The Florida High School Athletic Association requires all such referees to belong to a licensed association and for that association to have contracts with schools served. This past fall, the president of our local association called and asked me to look at a contract he received from a North Florida county school board. The contract included clauses requiring the association to carry liability insurance (which we do) but also that the association would indemnify and hold the school board harmless from any loss or action that arose while our referees were at their field. We declined to so agree. They asked that we have an attorney review the situation. I did and said that this was an adhesion clause and the school board should be ashamed of including such a clause in this agreement. After almost two months of back and forth, the school board eventually agreed to delete the indemnification clause. In this case, we had some negotiating power as the school in question would otherwise have no referees for their home games.