Sample News Media Indemnification Agreement

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					Overview of Outgoing Loan Agreement and Exhibition Loan Agreement
                          (Nancy Russell)

1. OUTGOING LOAN AGREEMENT (see Attachment)

a. Purpose of Loan
   • loan artwork from the permanent collection to another institution for exhibition,
      special installation, long term display with permanent collection and conservation

b.    Process of the Agreement
     • Borrower’s Request Letter with Loan Agreement
     • Receipt, Nine Month Lead Time, Negotiate, Approval, Countersign
     • Parties involved

c. The Agreement
   • Basic Loan Information
   • Conditions Governing Loans
   • Fine Art Insurance, Indemnity and Liability Clauses (8 variations)
         - Certificate of Insurance and Indemnity from Borrower
   • Projected Cost of Loan (Appendix A)

d. Co-Owned Artwork Agreement

e. Lending to a Co-Organized Exhibition

2. EXHIBITION LOAN AGREEMENT (see Attachment)

a. Purpose of Loan
   • Opposite of Outgoing Loan
   • Borrow artwork for an exhibition

b. Process of the Agreement
   • Request Letter with Loan Agreement
   • Whose Loan Agreement – Borrower’s or Lender’s?
   • Receipt, Time Line, Negotiate, Sign or Countersign
   • Parties involved

c. The Agreement
   • Single versus Multiple Loan
   • Questionnaire with Signature Line
         - One Date



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            - Lender and Owner of Artwork
            - Provenance


            - Fine Art Insurance, Indemnity and Liability Section
                        o Corresponding Condition 9
                        o Common Risk Management Addendum to Lender Loan
                           Agreements?
                        o Certificate of Insurance and Indemnity to Lender
     •   Other Conditions Governing Loans

  d. Co-Owned Artwork Agreement

  e. Borrowing from Co-Organizer of an Exhibition

                          Exhibition Agreements:
           Insurance, Dispute Resolution & Choice of Law Clauses
                              (Nancy Adelson)

AN OVERVIEW OF EXHIBITION AGREEMENTS -


  1. Single Organizer vs. Co-Organized Exhibitions

  2. Exhibition Agreements and Loan Agreements should Harmonize

  3. Consider Relationships among Organizers, Co-organizers and Venues

         a. An Agency Relationship, with Authority to Bind?

         b. Lender Dynamics

         c. Insurance Coverage—Transitions and Gaps

  4. Dispute Resolution and Related Clauses

         a. Mediation

         b. Arbitration

         c. Litigation with/without Juries

         d. Allocation of Dispute-Resolution Related Expenses

  5. Choice of Law and Forum Selection


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         Indemnification, Limitation on Liability & Termination Clauses
                                 (Larry Berger)
A. Indemnification Clauses

Consider this nightmare:

                               THE LADYGAGAO EXHIBITION

The two city tour of the much anticipated exhibition of contemporary art by Ladygagao received
quite favorable press when it opened at the first venue (the organizing museum). However,
months later when the exhibition opened at the second venue, the exhibition received press
attention of a different sort. At the opening gala, one of the works of art, which included
electrical components, experienced a problem, resulting in a small electrical explosion. Sadly,
the explosion sent debris hurtling through the well dressed crowd, seriously injuring two guests.

The next day the news media quoted a reliable source who said that the explosion resulted from
faulty installation of the work performed by the staff of the local museum or by a contractor. The
local museum strongly denied that was the case, contending that the work itself, which the
organizing museum had borrowed from a private collector, contained an inherent flaw. One of
the injured guests has now sued the local museum, and the other injured guest is threatening to
sue both museums.

“A single act of negligence…might create a liability which a lifetime of successful [activity]
could not repay.” Perry v. Payne, 66 A. 553, 555 (Pa. 1907).

The problem: Each museum would likely rely on its own comprehensive general liability
insurance to defend these claims. But can each museum be assured of coverage? Does the
organizing museum’s commercial general liability coverage extend to a claim by a person who
suffers injury at another museum’s site? Even if a court were to find that the organizing museum
is not liable for what happened at the second venue, the costs of defending the claim could be
steep.

   1. Absence of Indemnification Clause in Exhibition Agreement –

       Many exhibition agreements contain no indemnification clause. If the Ladygagao
       Exhibition Agreement contains no indemnification clause, each museum would be left to
       defend itself. Is that the risk sharing arrangement the two museums would have agreed to
       had they discussed the potential risk of an accident when they were negotiating the
       Exhibition Agreement?

   2. Sample Indemnification Clause –




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   “The Local Museum shall indemnify and hold harmless the Organizing Museum and its
   trustees, officers, employees and agents, against any and all claims, losses, liabilities and
   expenses (including reasonable attorneys fees and expenses) arising out of or related to
   any act or omission of the Local Museum or its agents in connection with the Exhibition
   at the Local Museum’s site, except that in no event shall the Local Museum be liable
   under this section ___ to the extent any such loss, liability or expense arises out of any
   negligence on the part of the Organizing Museum, or its trustees, officers, employees or
   agents.”

           Note: This clause is illustrative only and not intended to be a “model” clause.
           Each indemnification clause should be tailored to meet the needs of the parties
           and to fit the particular circumstances. (Paragraph 5 below contains examples of
           language from other indemnification clauses.)

           Note: In some contracts containing indemnification clauses, only one party
           indemnifies the other (unilateral indemnification). That is typically the case in
           situations where only one party has the responsibility to perform the non-financial
           obligations under the contract. In contrast, in contracts requiring each of the
           parties to perform certain obligations under the contract, mutual indemnification
           is more common. With mutual indemnification each party indemnifies the other
           party for losses for which the indemnifying party is responsible under the terms of
           the indemnification clause.

3. Purpose of Indemnification Clause –

       •   Damages for breach of contract are designed to compensate one party to a
           contract for the other party’s nonperformance. An indemnification clause does
           more, because it obligates the indemnifying party to pay for losses or expenses
           incurred by the other party (the “indemnified party”) if certain events occur –
           even if no breach of contract can be demonstrated. West and Duran, “Reassessing
           the ‘Consequences’ of Consequential Damage Waivers in Acquisition
           Agreements,” 63 Business Lawyer 777, 786 (May, 2008).

       •   An indemnification clause is a risk shifting device. Along with insurance and
           waivers of liability, indemnification clauses are used to transfer a risk from one
           party to a contract to the other party to the contract.


       •   An indemnification clause represents a contractual promise by one party to
           protect the other party to the contract against liability that the other party may
           incur to a person or organization that is not a party to the contract (i.e., a “third
           party”).

       •   An indemnification clause can serve to protect one party to a contract against
           vicarious liability imposed on that party for the actions of the other party to the



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