Indemnity and Liability Clause Pack - Florida

INDEMNITY AND LIABILITY CLAUSE PACK — FLORIDA

Jurisdiction: State of Florida
Governing Law: Florida Statutes; Florida common law
Template Version: 2026-03-21

TABLE OF CONTENTS

• PART I: Legal Framework
• PART II: Corporate Indemnification Clauses
• PART III: Contractual Indemnity Clause Pack
• PART IV: Limitation of Liability Clauses
• PART V: Anti-Indemnity Considerations
• PART VI: Insurance Requirements
• PART VII: Florida-Specific Practice Notes
• Sources and References

PART I: LEGAL FRAMEWORK

1.1 Florida Corporate Indemnification Statutes

Florida corporate indemnification is governed by the Florida Business Corporation Act, Fla. Stat. §§ 607.0850 through 607.0859. These provisions were substantially revised in recent years to modernize Florida's indemnification framework.

Statutory Structure:

Key provisions:

• Permissible indemnification (§ 607.0851): A corporation may indemnify an individual who is a party to a proceeding because the individual is or was a director or officer against liability incurred in the proceeding if the individual conducted himself or herself in good faith, and the individual reasonably believed (in the case of conduct in official capacity) the conduct was in the best interests of the corporation, or (in all other cases) was at least not opposed to the best interests of the corporation, and in the case of any criminal proceeding, the individual had no reasonable cause to believe the conduct was unlawful.

• Mandatory indemnification (§ 607.0852): Unless limited by the articles of incorporation, a corporation shall indemnify a director or officer who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director or officer was a party because of being a director or officer, against reasonable expenses incurred in connection with the proceeding.

• Advance for expenses (§ 607.0853): A corporation may, before final disposition of a proceeding, advance funds to pay for or reimburse expenses incurred in connection with the proceeding by an individual who is a party because that individual is or was a director or officer, if the individual delivers a signed written undertaking to repay any funds advanced if it is ultimately determined that the individual is not entitled to indemnification.

• Non-exclusivity (§ 607.0858): The indemnification and advancement of expenses provided by the statute are not exclusive, and a corporation may, by provision in its articles of incorporation, bylaws, any agreement, or by vote of shareholders or disinterested directors, obligate itself in advance to provide any other or further indemnification or advancement of expenses. However, the articles may limit rights to indemnification or advancement.

• Overriding restrictions (§ 607.0859): A corporation may not indemnify a director or officer: (a) in connection with a proceeding by or in the right of the corporation in which the director or officer was adjudged liable to the corporation; or (b) in connection with any proceeding charging that the director or officer received an improper personal benefit, to the extent the director or officer was adjudged liable on the basis that the director or officer received such benefit.

• Insurance (§ 607.0857): A corporation may purchase and maintain insurance on behalf of any individual who is or was a director or officer against any liability asserted against or incurred by the individual in that capacity, whether or not the corporation would have the power to indemnify under the statute.

1.2 Common Law Indemnity in Florida

Florida recognizes both express and implied indemnity:

• Express indemnity: Florida courts enforce contractual indemnity agreements according to their terms. A party may contractually agree to indemnify another for the indemnitee's own negligence, provided the contract clearly and unequivocally expresses such intent. Florida courts apply a "clear and unequivocal" standard.
• Implied indemnity: Florida recognizes implied indemnity in limited circumstances, such as where a party with secondary or vicarious liability seeks indemnification from the party primarily at fault.

1.3 Comparative Fault in Florida

Effective March 24, 2023, Florida transitioned from a pure comparative negligence system to a modified comparative negligence system under HB 837 (amending Fla. Stat. § 768.81). Under the modified system:

• A plaintiff whose percentage of fault is greater than 50% is barred from recovery (medical malpractice/medical negligence actions are exempt from this bar).
• Contributory fault equal to or less than 50% reduces the plaintiff's recovery proportionally.
• This change may affect the allocation of risk under indemnification provisions.

PART II: CORPORATE INDEMNIFICATION CLAUSES

2.1 Mandatory Indemnification Provision

CLAUSE 2.1 — MANDATORY INDEMNIFICATION

The Corporation shall indemnify each person who was or is a party to, or is threatened to be made a party to, any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (including any action by or in the right of the Corporation), by reason of the fact that such person is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, to the fullest extent permitted by Fla. Stat. §§ 607.0850 through 607.0859, as the same exist or may hereafter be amended, against expenses (including attorney fees), judgments, fines, penalties, and amounts paid in settlement actually and reasonably incurred in connection with such action, suit, or proceeding.

Mandatory Component (§ 607.0852): Unless limited by the Articles of Incorporation, the Corporation shall indemnify a director or officer who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director or officer was a party because of being a director or officer of the Corporation, against reasonable expenses incurred in connection with the proceeding, without the necessity of any determination as to the standard of conduct.

Overriding Restrictions (§ 607.0859): The Corporation shall not indemnify a director or officer: (a) in connection with a proceeding by or in the right of the Corporation in which the director or officer was adjudged liable to the Corporation; or (b) in connection with any proceeding in which the director or officer was adjudged liable on the basis that the director or officer received an improper personal benefit.

2.2 Permissive Indemnification Resolution

CLAUSE 2.2 — BOARD RESOLUTION FOR PERMISSIVE INDEMNIFICATION

RESOLVED, that the Corporation shall indemnify [________________________________] ("Indemnitee") against liability incurred in connection with [________________________________] (the "Proceeding"), subject to the following:

(a) The required authorization has been obtained under Fla. Stat. § 607.0855 by:

☐ A majority vote of the directors who are not parties to the Proceeding (even if less than a quorum)

☐ A majority of the members of a committee of two or more directors who are not parties to the Proceeding, designated by the directors who are not parties (even if less than a quorum)

☐ Special legal counsel, selected as provided in § 607.0855, in a written opinion

☐ The shareholders (excluding shares owned by or voted under control of directors who are parties to the Proceeding)

(b) The Board has determined that Indemnitee met the standard of conduct set forth in § 607.0851 (good faith, reasonable belief in best interests, no reasonable cause to believe criminal conduct was unlawful).

2.3 Advancement of Expenses

CLAUSE 2.3 — ADVANCEMENT OF EXPENSES

The Corporation shall pay for or reimburse reasonable expenses incurred by a director or officer who is a party to a proceeding in advance of the final disposition of such proceeding, pursuant to Fla. Stat. § 607.0853, upon receipt of:

(a) A signed written undertaking by or on behalf of the director or officer to repay any funds advanced if:

• The director or officer is not entitled to mandatory indemnification under § 607.0852; and
• It is ultimately determined under § 607.0854 or § 607.0855 that the director or officer has not met the relevant standard of conduct described in § 607.0851, or the director or officer is not entitled to indemnification under § 607.0859.

The undertaking required above shall be an unlimited general obligation of the director or officer but need not be secured and may be accepted without reference to the financial ability of the director or officer to make repayment.

2.4 Directors and Officers Insurance

CLAUSE 2.4 — D&O INSURANCE AUTHORIZATION

Pursuant to Fla. Stat. § 607.0857, the Corporation may purchase and maintain insurance on behalf of any individual who is or was a director, officer, employee, or agent of the Corporation, or who, while a director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, or agent of another entity, against liability asserted against or incurred by the individual in that capacity, whether or not the Corporation would have the power to indemnify under §§ 607.0850 through 607.0859.

Minimum Coverage Parameters:

☐ Each-occurrence limit: $[________________________________]

☐ Annual aggregate limit: $[________________________________]

☐ Retention/deductible: $[________________________________]

☐ Policy form: ☐ Claims-made ☐ Occurrence

☐ Tail coverage period (if claims-made): [____] years

2.5 Non-Exclusivity of Rights

CLAUSE 2.5 — NON-EXCLUSIVITY

The rights to indemnification and advancement of expenses conferred by this Article shall not be exclusive of any other right that any person may have or hereafter acquire under any provision of the Articles of Incorporation, the Bylaws, any agreement, vote of shareholders or disinterested directors, or otherwise. Pursuant to Fla. Stat. § 607.0858, the Corporation may obligate itself in advance to provide any other or further indemnification or advancement of expenses to directors or officers to the fullest extent permitted by law.

PART III: CONTRACTUAL INDEMNITY CLAUSE PACK

3.1 Mutual Indemnification (Balanced)

CLAUSE 3.1 — MUTUAL INDEMNIFICATION

Each party (when acting as the "Indemnifying Party") shall indemnify, defend, and hold harmless the other party and its officers, directors, employees, agents, successors, and permitted assigns (collectively, the "Indemnified Parties") from and against any and all third-party claims, demands, actions, suits, proceedings, losses, damages, liabilities, judgments, fines, penalties, costs, and expenses (including reasonable attorney fees and court costs) (collectively, "Losses") arising out of or relating to:

(a) Any material breach of any representation, warranty, or obligation of the Indemnifying Party under this Agreement;

(b) The gross negligence or willful misconduct of the Indemnifying Party or its officers, directors, employees, agents, or subcontractors;

(c) Any infringement or misappropriation of any third-party intellectual property right by the Indemnifying Party's materials, products, or services provided under this Agreement; or

(d) Any violation of applicable law by the Indemnifying Party in the performance of its obligations under this Agreement,

in each case, except to the extent such Losses arise from the negligence or willful misconduct of the Indemnified Parties or from the Indemnified Parties' breach of this Agreement.

Florida Practice Note: Florida's 2023 tort reform (HB 837) changed Florida from a pure comparative negligence state to a modified comparative negligence state. A party whose fault exceeds 50% is barred from recovery in negligence (with limited exceptions). Indemnification provisions should clearly address fault allocation.

3.2 One-Way Indemnification (Provider to Customer)

CLAUSE 3.2 — PROVIDER INDEMNIFICATION OF CUSTOMER

Provider shall indemnify, defend, and hold harmless Customer and its officers, directors, employees, agents, successors, and permitted assigns from and against any and all Losses arising out of or relating to:

(a) Any third-party claim alleging that Customer's authorized use of Provider's products or services infringes, misappropriates, or otherwise violates any patent, copyright, trademark, trade secret, or other intellectual property right of a third party;

(b) Provider's material breach of any representation, warranty, or obligation under this Agreement;

(c) The gross negligence or willful misconduct of Provider, its employees, agents, or subcontractors; or

(d) Provider's violation of applicable law.

Exclusions from Provider's Indemnification Obligation:

Provider's obligations under this Section shall not apply to claims arising from: (i) modifications to Provider's products or services made by Customer without Provider's written approval; (ii) use of Provider's products or services in combination with third-party products, services, or materials not supplied or approved by Provider; (iii) Customer's use of Provider's products or services in violation of this Agreement or applicable law; or (iv) Customer's continued use after being notified of the alleged infringement and provided a non-infringing alternative.

Mitigation Remedies: If any product or service becomes, or in Provider's reasonable opinion is likely to become, the subject of an infringement claim, Provider may, at its sole option and expense: (1) procure for Customer the right to continue using the affected product or service; (2) replace or modify the affected product or service to make it non-infringing without material degradation in functionality; or (3) if neither (1) nor (2) is commercially practicable, terminate the affected product or service and refund to Customer any prepaid, unused fees.

3.3 Customer Indemnification (Customer to Provider)

CLAUSE 3.3 — CUSTOMER INDEMNIFICATION OF PROVIDER

Customer shall indemnify, defend, and hold harmless Provider and its officers, directors, employees, agents, successors, and permitted assigns from and against any and all Losses arising out of or relating to:

(a) Any third-party claim arising from Customer Data, including claims of defamation, invasion of privacy, or infringement of intellectual property rights;

(b) Customer's use of Provider's products or services in violation of applicable law or this Agreement;

(c) Customer's use of Provider's products or services in combination with third-party systems, products, or materials not supplied or approved by Provider, to the extent such combination gives rise to the claim; or

(d) Customer's gross negligence or willful misconduct.

3.4 Third-Party Claims Procedure

CLAUSE 3.4 — THIRD-PARTY CLAIMS PROCEDURE

(a) Notice. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any third-party claim for which indemnification is sought (a "Claim Notice"). The Claim Notice shall describe the claim in reasonable detail and include copies of relevant pleadings, correspondence, or documents. The failure to provide prompt notice shall not relieve the Indemnifying Party of its indemnification obligations except to the extent the Indemnifying Party is materially prejudiced by such failure.

(b) Defense. The Indemnifying Party shall have the right, at its sole cost and expense, to assume and control the defense of any claim for which it is obligated to provide indemnification, using counsel of its own choosing reasonably acceptable to the Indemnified Party. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its counsel.

(c) Participation. The Indemnified Party may participate in the defense of any claim with its own counsel and at its own expense; provided, however, that if the Indemnifying Party fails to assume the defense within [____] business days after receiving the Claim Notice, or if a conflict of interest makes it inappropriate for the same counsel to represent both parties, the Indemnified Party may assume the defense at the Indemnifying Party's expense.

(d) Settlement. The Indemnifying Party shall not settle any claim without the Indemnified Party's prior written consent (not to be unreasonably withheld, conditioned, or delayed) if the settlement: (i) imposes any non-monetary obligation on, or requires any admission of liability by, the Indemnified Party; (ii) does not include a complete and unconditional release of the Indemnified Party; or (iii) involves the payment of money for which the Indemnified Party will not be fully indemnified.

(e) Cooperation. The Indemnified Party shall make available to the Indemnifying Party all relevant records, documents, and information, and shall provide reasonable assistance and cooperation, at the Indemnifying Party's expense.

3.5 Direct Claims Between Parties

CLAUSE 3.5 — DIRECT CLAIMS PROCEDURE

(a) Notice. In the event of a direct claim, the Indemnified Party shall deliver a written notice specifying: (i) the nature of the claim in reasonable detail; (ii) the specific provisions of this Agreement alleged to have been breached; and (iii) the estimated amount of Losses incurred or expected to be incurred.

(b) Response. The Indemnifying Party shall respond within [____] business days, either accepting the claim (in whole or in part), rejecting the claim, or requesting additional information.

(c) Resolution. If the parties cannot resolve the direct claim within [____] business days after the Indemnifying Party's response, either party may pursue resolution through the dispute resolution mechanisms set forth in this Agreement.

PART IV: LIMITATION OF LIABILITY CLAUSES

4.1 Consequential Damages Exclusion

CLAUSE 4.1 — EXCLUSION OF CONSEQUENTIAL DAMAGES

EXCEPT FOR THE EXCLUDED CLAIMS SET FORTH IN SECTION 4.3 BELOW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER SIMILAR DAMAGES, ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

Florida Practice Note: Florida courts generally enforce consequential damages waivers in commercial contracts between sophisticated parties. Under Florida's UCC (Fla. Stat. § 672.719(3)), limitation of consequential damages for personal injury in consumer goods cases is prima facie unconscionable. Florida's 2023 tort reform (HB 837) also reduced the statute of limitations for negligence actions from four years to two years, which may impact the timing of indemnity claims.

4.2 Cap on Aggregate Liability

CLAUSE 4.2 — AGGREGATE LIABILITY CAP

EXCEPT FOR THE EXCLUDED CLAIMS SET FORTH IN SECTION 4.3 BELOW, EACH PARTY'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED:

☐ Option A (Fee-Based Cap): The aggregate amount of fees actually paid or payable by Customer to Provider during the [____]-month period immediately preceding the first event giving rise to such liability.

☐ Option B (Fixed-Dollar Cap): $[________________________________].

☐ Option C (Greater-Of Cap): The greater of (i) the aggregate amount of fees actually paid or payable by Customer to Provider during the [____]-month period immediately preceding the first event giving rise to such liability, or (ii) $[________________________________].

4.3 Carve-Outs from Liability Limitations

CLAUSE 4.3 — EXCLUDED CLAIMS

The limitations of liability set forth in Sections 4.1 and 4.2 shall not apply to (collectively, "Excluded Claims"):

(a) Either party's indemnification obligations for third-party intellectual property infringement claims;

(b) Either party's liability arising from gross negligence, willful, wanton, or intentional misconduct;

(c) Either party's liability arising from a breach of its confidentiality obligations under this Agreement;

(d) Either party's liability arising from a data breach caused by such party's failure to maintain agreed-upon security controls;

(e) Customer's obligation to pay fees due and payable under this Agreement;

(f) Either party's liability arising from statutory violations or punitive damages; and

(g) Either party's liability arising from bodily injury, death, or damage to tangible property.

Optional Supercap for Data Breach or Security Incidents:

☐ Notwithstanding the foregoing, each party's total cumulative liability for a data breach caused by such party's failure to maintain agreed-upon security controls shall not exceed the greater of: (i) [____] times the liability cap set forth in Section 4.2; or (ii) $[________________________________].

4.4 Enforceability Under Florida Law

CLAUSE 4.4 — ENFORCEABILITY SAVINGS PROVISION

The parties acknowledge that the limitations of liability and exclusions of damages set forth in this Agreement reflect a fair and reasonable allocation of risk and are a material inducement for each party to enter into this Agreement. If any limitation or exclusion is found to be unenforceable under Florida law, it shall be reformed to the minimum extent necessary to make it enforceable.

Florida Enforceability Notes:

• Florida courts enforce contractual limitation of liability provisions in commercial contracts between sophisticated parties.
• Exculpatory clauses are valid in Florida for negligence but not for intentional torts or gross negligence (Celdran v. Hertz Corp., 371 So. 2d 1080 (Fla. 3d DCA 1979)).
• Limitations for willful, wanton, or intentional misconduct are generally unenforceable.
• Florida's 2023 tort reform reduced the statute of limitations for general negligence claims from four years to two years (Fla. Stat. § 95.11(3)).

PART V: ANTI-INDEMNITY CONSIDERATIONS

5.1 Construction Anti-Indemnity Statute (Fla. Stat. § 725.06)

Florida Statutes § 725.06 restricts indemnification in construction contracts as follows:

Scope: Applies to construction contracts related to a "building, structure, appurtenance, or appliance, including moving, demolition, and excavating connected therewith." Courts have held the statute does not apply to utility contracts or other horizontal construction outside the statute's defined scope.

Monetary Limitation Requirement: An indemnification provision in a construction contract shall be void and unenforceable unless:

(a) The contract contains a monetary limitation on the extent of the indemnification that bears a reasonable commercial relationship to the contract and is part of the project specifications or bid documents, if any; and

(b) The monetary limitation on the extent of the indemnification provided to the owner of real property by any party in privity of contract with such owner shall not be less than $1 million per occurrence, unless otherwise agreed by the parties.

Prohibition on Indemnification for Indemnitee's Own Fault:

Indemnification shall not include claims of, or damages resulting from, gross negligence, or willful, wanton, or intentional misconduct of the indemnitee or its officers, directors, agents, or employees, or for statutory violations or punitive damages except to the extent the statutory violation or punitive damages are caused by or result from the acts or omissions of the indemnitor or its subcontractors, agents, or employees.

5.2 Design Professional Indemnity Limitations

Fla. Stat. § 725.08 restricts indemnification provisions in design professional services contracts. A design professional may not be required to indemnify against the negligence of the owner or other parties, and indemnity obligations must be limited to claims arising from the design professional's own negligence, errors, or omissions.

5.3 Construction Contract Indemnity Clause (Florida-Compliant)

CLAUSE 5.3 — CONSTRUCTION INDEMNITY (COMPLIANT WITH FLA. STAT. § 725.06)

To the maximum extent permitted by Fla. Stat. § 725.06, Contractor shall indemnify, defend, and hold harmless Owner and its officers, directors, employees, and agents from and against any and all Losses arising out of or relating to:

(a) Bodily injury (including death) to any person;

(b) Damage to property (including loss of use thereof); or

(c) Any other loss, damage, or expense,

caused by or arising out of the negligent acts, errors, or omissions of Contractor, its subcontractors, agents, or employees in the performance of the Work, but not to the extent arising from the gross negligence, or willful, wanton, or intentional misconduct of Owner, its officers, directors, agents, or employees, or from statutory violations or punitive damages attributable to Owner.

MONETARY LIMITATION (REQUIRED BY § 725.06):

The total indemnification obligation of Contractor under this Section shall not exceed:

$[________________________________] per occurrence

(Minimum: $1,000,000 per occurrence for contracts with the owner of real property, unless otherwise agreed)

This monetary limitation bears a reasonable commercial relationship to the contract and has been specifically negotiated by the parties as part of the project specifications.

IMPORTANT NOTICES:

(a) The monetary limitation set forth above is a required element of this indemnification provision under Fla. Stat. § 725.06. Failure to include a monetary limitation may render this indemnification provision void and unenforceable.

(b) This indemnification does not cover claims arising from the gross negligence, willful, wanton, or intentional misconduct of the indemnitee.

PART VI: INSURANCE REQUIREMENTS

6.1 General Insurance Requirements

CLAUSE 6.1 — INSURANCE REQUIREMENTS

[________________________________] ("Insured Party") shall, at its sole cost and expense, obtain and maintain throughout the term of this Agreement, and for a period of [____] years thereafter, the following insurance coverages with carriers rated no less than "A-" (VII) by A.M. Best Company:

(a) Commercial General Liability Insurance:

☐ Each-occurrence limit: $[________________________________]

☐ General aggregate limit: $[________________________________]

☐ Products-completed operations aggregate: $[________________________________]

☐ Personal and advertising injury: $[________________________________]

Coverage shall include premises-operations, products-completed operations, contractual liability, broad form property damage, and independent contractors.

(b) Professional Liability (Errors and Omissions) Insurance:

☐ Each-claim limit: $[________________________________]

☐ Annual aggregate limit: $[________________________________]

☐ Retroactive date: No later than [__/__/____]

(c) Workers' Compensation and Employers' Liability Insurance:

☐ Workers' Compensation: Statutory limits as required by the Florida Workers' Compensation Law (Fla. Stat. Ch. 440)

☐ Employers' Liability:
- Each accident: $[________________________________]
- Disease — policy limit: $[________________________________]
- Disease — each employee: $[________________________________]

(d) Commercial Automobile Liability Insurance:

☐ Combined single limit: $[________________________________]

Coverage shall include owned, hired, and non-owned vehicles.

(e) Umbrella/Excess Liability Insurance:

☐ Each-occurrence limit: $[________________________________]

☐ Annual aggregate limit: $[________________________________]

6.2 Additional Insured Requirements

CLAUSE 6.2 — ADDITIONAL INSURED

[________________________________] ("Additional Insured") shall be named as an additional insured on all commercial general liability, commercial automobile liability, and umbrella/excess liability insurance policies, using ISO Additional Insured endorsement CG 20 10 (or equivalent) for ongoing operations and CG 20 37 (or equivalent) for completed operations.

The additional insured coverage shall:

(a) Be primary and non-contributory with respect to any other insurance or self-insurance maintained by the Additional Insured;

(b) Apply on a per-project basis, where applicable;

(c) Include a waiver of subrogation in favor of the Additional Insured; and

(d) Not be limited by any limitation of liability set forth in this Agreement.

6.3 Waiver of Subrogation

CLAUSE 6.3 — WAIVER OF SUBROGATION

Each party shall cause its insurers to waive all rights of subrogation against the other party and its officers, directors, employees, and agents with respect to any claims covered by the insurance policies required under this Agreement.

6.4 Certificates of Insurance

CLAUSE 6.4 — CERTIFICATES AND EVIDENCE OF INSURANCE

[________________________________] shall deliver to [________________________________] certificates of insurance evidencing all required coverages prior to the commencement of any work or services, and annually thereafter upon renewal. Certificates shall:

(a) Identify the named insured, policy numbers, policy periods, and coverage limits;

(b) Confirm additional insured status, waiver of subrogation, and primary/non-contributory status;

(c) Provide that the insurer shall endeavor to provide [____] days' prior written notice to the certificate holder of any cancellation, non-renewal, or material change in coverage; and

(d) Be accompanied by copies of all required endorsements upon request.

PART VII: FLORIDA-SPECIFIC PRACTICE NOTES

7.1 Modified Comparative Negligence (2023 Tort Reform)

Effective March 24, 2023, Florida adopted a modified comparative negligence system under HB 837 (amending Fla. Stat. § 768.81):

• A plaintiff whose percentage of fault exceeds 50% is barred from recovery (except for medical negligence).
• For plaintiffs with 50% or less fault, recovery is reduced proportionally.
• This is a significant change from Florida's previous pure comparative negligence system and affects indemnification and risk allocation.

7.2 Joint and Several Liability (Abolished)

Florida has abolished joint and several liability for most causes of action under Fla. Stat. § 768.81(3). Each defendant is liable only for its proportionate share of damages based on its percentage of fault, with limited exceptions (e.g., where a defendant's fault is greater than the plaintiff's and the case involves intentional torts).

7.3 Statute of Limitations Considerations

• Written contract claims: Five (5) years (Fla. Stat. § 95.11(2)(b))
• Oral contract claims: Four (4) years (Fla. Stat. § 95.11(3)(k))
• Negligence claims: Two (2) years (Fla. Stat. § 95.11(3)(a), as amended by 2023 tort reform — previously four years)
• Construction defect claims: Subject to the statute of repose — actions for latent defects must be commenced within ten (10) years after the date of actual possession, issuance of certificate of occupancy, issuance of certificate of completion, or abandonment of construction, whichever is latest (Fla. Stat. § 95.11(3)(c))

7.4 Jury Waiver Enforceability

Florida courts recognize the enforceability of pre-dispute jury waivers in commercial contracts, provided the waiver is knowing, voluntary, and intelligent. The Florida Constitution (Art. I, § 22) preserves the right to trial by jury. Practitioners should:

☐ Include conspicuous placement of the waiver (capitalized, bold, or separate signature line)

☐ Ensure the waiver is mutual

☐ Consider Florida Arbitration Code (Fla. Stat. Ch. 682) as an alternative to jury waiver

7.5 Florida Specific Attorney Fee Considerations

Under Florida's "American Rule," each party bears its own attorney fees unless a statute, contract, or other authority provides otherwise. Indemnification provisions that include attorney fees should:

• Clearly specify whether attorney fees are included as an element of Losses
• Comply with Fla. Stat. § 57.105 (sanctions for frivolous claims)
• Consider the impact of Fla. Stat. § 768.79 (offer of judgment) on attorney fee recovery

7.6 Drafting Checklist

☐ Verify that all construction contract indemnification provisions comply with Fla. Stat. § 725.06

☐ Ensure construction indemnification includes the required monetary limitation (minimum $1 million per occurrence for owner contracts)

☐ Confirm that the monetary limitation bears a reasonable commercial relationship to the contract

☐ Ensure no indemnification for gross negligence, willful/wanton/intentional misconduct, or statutory violations of the indemnitee

☐ Consider Florida's modified comparative negligence system when allocating fault

☐ Verify that corporate indemnification provisions comply with Fla. Stat. §§ 607.0850 through 607.0859

☐ Ensure the overriding restrictions of § 607.0859 are respected

☐ Verify insurance requirements meet Florida-specific minimums (including Florida Workers' Compensation under Fla. Stat. Ch. 440)

☐ Consider the impact of Florida's 2023 tort reform on statute of limitations and damage calculations

☐ Include appropriate survival provisions for post-termination indemnification obligations

☐ Ensure all optional provisions are appropriately selected and all bracketed fields are completed

SOURCES AND REFERENCES

1. Fla. Stat. §§ 607.0850 through 607.0859 — Florida Business Corporation Act, Indemnification
   - https://law.justia.com/codes/florida/title-xxxvi/chapter-607/part-i/

2. Fla. Stat. § 607.0852 — Mandatory Indemnification
   - https://m.flsenate.gov/Statutes/607.0852

3. Fla. Stat. § 607.0853 — Advance for Expenses
   - https://m.flsenate.gov/Statutes/607.0853

4. Fla. Stat. § 607.0858 — Variation by Corporate Action; Application
   - https://m.flsenate.gov/Statutes/607.0858

5. Fla. Stat. § 725.06 — Construction Contracts; Limitation on Indemnification
   - https://m.flsenate.gov/Statutes/725.06

6. Fla. Stat. § 768.81 — Comparative Fault (as amended by 2023 HB 837)
   - https://m.flsenate.gov/Statutes/768.81

7. Fla. Stat. § 95.11 — Statute of Limitations
   - https://m.flsenate.gov/Statutes/95.11

8. Fla. Stat. Ch. 440 — Florida Workers' Compensation Law
   - https://m.flsenate.gov/Statutes/Chapter440

This clause pack is provided for informational purposes only and does not constitute legal advice. It must be reviewed and customized by a qualified attorney licensed in Florida before use. Laws change frequently; all citations should be verified against current statutes before relying on this document.

Prepared for use on the ezel.ai platform. For solo practitioners licensed in Florida.