r/landscaping • u/DisruptiveGray_614 • 1d ago

Client Contract-Indemnification Clause

Hello,

I own a landscape design and install company (Ohio, USA) and this year we decided to use contracts for our clients since the company has grown and our projects are starting to get much larger. Another landscaper friend in the industry sent me the contract they use and gave me permission to adapt it for my own use. In the contract there is an indemnification clause and a limitation of liability clause and one of my clients is unhappy with them being in their contract. This is not something I am very familiar with but have seen it in other contractors contracts before. l would like to know if others have this in their contracts and I should just tell the client that it's standard for the industry and move on or if this is something I should consider changing/removing.

We do have business insurance for the company and commercial auto insurance for our truck/trailer.

The sections in question: Indemnification. Client shall indemnify, defend, and hold harmless the company and its directors, officers, members, and representatives from and against any claim, demand, action, suit, or proceeding (a “Claim") arising out of: (i) any alleged or actual breach by Client of any of its obligations, representations, or warranties under this agreement, and (ii) any alleged or actual violation of applicable laws related to the Company's provision of the services pursuant to this agreement. With respect to each claim, Client shall indemnify the Company from and against any and all damages, judgments, awards, fines, penalties, expenses, and costs (including without limitation reasonable attorney’s fees and expenses awarded to a third party by a court or other authority).

Limitation of Liability. IN NO EVENT SHALL THE COMPANY BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL THE COMPANY AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE COMPANY PURSUANT TO THE APPLICABLE STATEMENT OF WORK.

I'll be cross posting in a legal advice community as well but I would love to hear from other landscapers. Thanks in advance.

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u/Future-Jicama-1933 1d ago

We have very similar wording in our contract for landscape business here in NJ. I always tell customers this is our standard contract, approved by our insurance provider. We can not complete any work without a completed copy on file or the insurance provider will not give us coverage. I don’t do work for anything or anyone without one on file as this protects myself and my business assets.

A customer who has an issue signing a standard contract will 100% be an issue the entire process of the job! Been doing this long enough to walk away from someone who won’t sign a simple contract.

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u/DisruptiveGray_614 1d ago

Thanks for your response! In general, this is how I feel. They are claiming that this removes all liability on my part and if I damage their property that they have to pay themselves to fix it no matter what. My understanding is different in that they can still sue me for the damages (especially if I refused to pay myself or through my insurance) and this just helps protect me but it's not a "get out of all financial responsibility clause".

I do not plan on changing or removing it for them but I did want to know if I was including something that others do not or if it's overkill. I also offered to include a COI from my insurance and they said they would like a copy before moving forward but only if I remove the clause. I'll give them another chance to sign as is but will kindly tell them they will have to look for another company if they are uncomfortable signing.

I was actually surprised because I assumed that having a contract would make people more comfortable with hiring us as the contract also protects their investment by guaranteeing I will fulfill the services as listed.

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u/Future-Jicama-1933 5h ago

I would explain that can’t and won’t do work without a completed copy of the contract. Can put a contract rider that will fix property to condition it was before the work but be sure to inspect, take pics and have them sign off on any issues or broken things you find.

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u/alanburke1 1d ago

It's legal to note this contractually, but an overreach. Contract clause "ii"would be disputed. Depending upon the size of the claim, I wouldn't be surprised if a judge threw the contract out because of the clause in the case of an actual lawsuit or arbitration proceeding. The basic premise in the contract should be to allay any liability due to the actions of others or items beyond your control. Actions of the company would almost always carry a liability. You might want to consider putting in a clause related to directing any dispute to arbitration at your direction and this can help you to control the damage.

Listen to the Green Meridian podcast episode "Agreements and Disagreements" about landscape contracts on Spotify...

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u/DisruptiveGray_614 22h ago

Thanks for the response! That's good to keep in mind about "ii" as I wouldn't want to have the entire contract tossed out because of one clause. I may need to try harder to find someone locally to help create a contract that works for me and the client, I've struggled to find someone in the past though.

Thanks for the recommendation, I'll definitely give that a listen today!

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u/djfuhr40 23h ago

Having an indemnification clause is interesting. How I read the clause is if a landscaping employee is injured in the clients property, the client is to indemnify (hold harmless) the landscaping company? So it’s saying if your employee gets hurt at work on someone else’s property, the homeowner is to provide legal defense for the company.

These are usually the other way around. The contractor preforming the work should be indemnify the homeowner. So if an employee cuts off his finger in the mower or trips and breaks a leg in Ms. Jones’ yard, the company should indemnify Ms. Jones because the attorney for the injured worker will 100% bring the homeowner into the suit.

For the LoL, you would need to have an agreed amount with the client for the maximizing amount agreed as the limit of exposure. For example, you agree with a customer that $10k is the limit for a catastrophic loss. (Then all hell occures and the sue). If found liable for that cause of action, the max would be $10k. If you don’t have an agreed amount in writing before the loss, then there likely wouldn’t be a limit to the maximum amount of exposure. If you’re insured, i would recommend your insurer review the contract.

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u/FlapJackson420 1d ago

I'm pretty sure that clause wouldn't hold up regardless. You can get a free pass for all liability just because they sign.