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What is Indemnification | Indemnification Clauses and Indemnity Explained - YouTube
Channel: Elizabeth Potts Weinstein
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hey this is elizabeth potts weinstein
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and today we're going to talk about
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indemnifications what are they why are
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they
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important and what should you watch out
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for
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what does indemnification mean or
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indemnify according to merriam-webster
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it is about
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securing or making compensation to
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another person or entity
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for a hurt loss or damage
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so what we're talking about is kind of
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like
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insurance what you're doing is someone
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else is
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damaged in some way and you're making up
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for it you're
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compensating them for that hurt loss or
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damage
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so why should you have an
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indemnification clause in
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a contract why does anyone want one the
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idea here
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is that one side versus the other
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has information has control
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over something that's happening in this
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transaction
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in this business deal in this situation
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but the other side doesn't have
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and it makes sense it's just fair for
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the side that
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has control for the side that has the
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information
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to be responsible if something goes
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wrong
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for example let's say you hire someone
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to write
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a blog post for your website now
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if you hire that person to write that
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blog post you're
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assuming that they're going to write it
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themselves let's say
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instead of writing it themselves they
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just steal it from some random person on
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the internet they plagiarize
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they are committing copyright
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infringement
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and then they give that blog post to you
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you innocently put it on your website
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and what happens you get a
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cease assist letter from the person who
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actually owns the copyright over that
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content
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you're in trouble but you're not the one
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who actually did the original copyright
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infringement
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you're still committing it copyright
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infringement because you posted it on
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your website but
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you didn't even know that's the idea of
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having indemnification clause
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the person who actually did the wrong
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thing who had control
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over the situation is the one who's
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responsible
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to defend you in court to pay the
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damages
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whatever happens in that situation the
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person who
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committed the action is the one who has
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to pay for it
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so what do indemnification clauses look
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like
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this is the indemnification clause
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that's part of
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youtube's terms of service so it applies
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to any of you who are watching this on
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youtube
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or who are creators of youtube videos
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where you're indemnifying youtube
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against any damage that you cause to
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them
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so typically it looks like this and this
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says
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to the extent permitted by applicable
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law because there are
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limits to how much you can indemnify
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someone
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you agree to defend indemnify and hold
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harmless
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now interestingly enough hold harmless
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and
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is the same thing as indemnify so i
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don't actually put both those phrases in
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any of my agreements but
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youtube does hold harmless youtube
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it's affiliates officers directors
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employees and
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agents fermenting all claims damages
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obligations losses liabilities costs or
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debt and expenses
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including but not limited to attorney's
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fees
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this is something to be aware of is that
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an indemnification clause you might not
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just be liable to somebody
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to compensate them for damages that
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they've received
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but also to pay for a lawyer to defend
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them
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in a lawsuit and sometimes that can be
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the most expensive thing involved here
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and this is for any damages that arise
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from your use and access to the service
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so even if you're just a user
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your violation of any term is agreement
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like above it has
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terms where you agree to not post
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anything that
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infringes someone else's copyright or
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trademark
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your violation of any third party right
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including without limitation
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copyright property or privacy right so
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you post something that is copyright
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infringement you post something that
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infringes among the privacy of somebody
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talking about that and youtube gets sued
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or
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any claim that your content causes
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damages to a third party so that's
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pretty much you know anything that
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causes
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damage that kind of gets everything else
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this defense and a notification
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obligation will survive this agreement
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and your use of service so even if you
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quit youtube right now never use youtube
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again
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you still have agreed to indemnify the
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giant
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entity of youtube which is of course
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google
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against any harm that you cost to them
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that is defined by this indemnification
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agreement
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there are a lot of limits and
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qualifications that you can have to
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indemnification clause you could have
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pieces in it that limit damages to only
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certain types of damages
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you could have pieces in it that say who
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gets to control the lawsuit who has the
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right to participate in the lawsuit
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and you can also have things in there
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that says
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whether or not you have to pay for it as
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you go
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or just pay at the end what i mean is
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let's say that you're the person who
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wrote the
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article and you don't think it is
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copyright infringement
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well you probably want to be involved in
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what's going on
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so the other side doesn't just say yes i
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will pay you three thousand dollars of
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damages and you actually have to write
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the check
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so there are other aspects of
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indemnification that can be negotiated
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now with an indemnification clause you
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have to be clear
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it has to be specific that you're
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actually doing that indemnification it's
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not something that's going to happen
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most
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likely automatically courts are very
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specific about that
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also typically you don't have to
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indemnify
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against someone else doing things that
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are illegal
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so there are limitations to how
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indemnification clauses work that have
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been enforced by courts one of the ways
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that you can negotiate an identification
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clause especially if both sides are
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relatively equal
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you're both small business owners for
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example is to have them
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go both ways so you're
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indemnifying the other side against all
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everything that you promised
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all the warranties that you gave in the
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contract any representations that you
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may have made
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and the other side is doing the same for
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you if the
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identification goes both ways it makes
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it a lot easier to get both sides to
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[Music]
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agree
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the bottom line is always look for
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identification clauses in a contract
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you don't want to be indemnifying
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somebody else
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unless you know that you're doing it and
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you're the one who actually has control
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over the situation over what's happening
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that you're going to have to
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indemnify someone against on the flip
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side
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there are situations where somebody else
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is doing something completely out of
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your control you're not monitoring what
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they're doing
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and you need them to protect you
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again this is elizabeth potts weinstein
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if you have any questions about
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indemnifications go ahead and post them
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below
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in the comments if you found this video
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helpful
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please go ahead and hit the like button
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and of course if you like
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any other tips about small business law
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or other intellectual property issues go
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ahead and subscribe
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thanks a lot for watching bye
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