Plymouth Sales & Lettings agrees to defend, indemnify, and hold harmless the Indemnities, from any and all damages, liability, and claims, arising from the covered claim(s).
Plymouth Sales & Lettings (PSL) policy is that all properties advertised on our site should comply with the letter and spirit of the Consumer Protection from Unfair Trading Regulations 2008 (which sets out the obligations and restrictions previously contained in the Property Miss description Act 1991, now repealed.)
These regulations provide protection to consumers by requiring those marketing properties not to make false or misleading statements or to omit important information that consumers need to make decisions about the properties on offer. We believe an agent can only fulfill their obligations under the regulations by personally visiting each property they market.
We believe this policy is important in protecting and promoting the quality of the service we offer to homebuyers.
The duty to defend is an obligation to provide a defense against a covered claim. The obligation is distinct from the duty to reimburse loses.
First, the scope of the duty to defend may differ from the obligation to compensate for losses. Because the duty to defend and the duty to indemnify are distinct obligations, the contract may impose a duty to defend the underlying claim even in the absence of a duty to indemnify. In other words, the contractual duty to defend a claim … may be broader than, and arise more often than, the duty to provide indemnity from a loss or judgment.
Second, the duty may be triggered at different times. The requirement to defend is triggered as soon as a claim is made.
In negotiation, potential indemnities may seek to strike any duty to defend language. There is no common law duty of a consultant to defend its client against third-party actions. That duty can only arise as a result of a contractual liability created through the indemnification clause of the contract. Since this is a contractual liability, it is excluded from overage pursuant to the contractual liability exclusion of the errors and omissions policy.
The requirement to indemnify is an obligation to compensate the covered party for any losses or liabilities incurred. Typically, the claims are losses incurred by the indemnified party caused by a party or brought by third parties against the indemnities.
The statement, to hold harmless, means to exonerate another from liability. A hold harmless provision means that an organization is not liable for certain damages under an Agreement. This clause effectively bars the party responsible for indemnification from bringing suit against the party being indemnified.
No one is offensive and the other is defensive-even though both contemplate third-party liability situations. 'Indemnify' is an offensive right-a sword allowing an indemnities to seek indemnification. 'Hold harmless' is defensive: The right not to be bothered by the other party itself seeking indemnification. Nonetheless, the Court concludes that the language of the indemnity term 'should not be construed in an exculpatory manner'.
However, prevailing opinion holds that the terms 'indemnify' and 'hold harmless' are interchangeable. For example, Black's Law Dictionary treats them as synonyms. As a term of art, 'hold harmless' is generally interpreted to mean to protect another against harm or damage.
Most commentators propose the use of both terms. It is advisable to include both indemnification and hold harmless language because of the variety of definitions of hold harmless.
However, the same argument that the terms covers a broader range of outcome can also be interpreted as creating uncertainty, and for this reason, others strongly advise against its use.
The clearest position is exclude the term 'hold harmless', unless the parties intend to bar claims by the indemnitor in which case the language should be clearly expressed to include the terms exonerate, exculpate or bar to claims.