2014 Arkansas Code
Title 4 - Business and Commercial Law
Subtitle 5 - Contracts, Notes, And Other Commercial Instruments
Chapter 56 - General Provisions
§ 4-56-104 - Hold harmless clause in construction contracts unenforceable.

(a) As used in this section:

(1) "Construction" means any of the following services, functions, or combination of the following services or functions to construct a building, building site, or structure, to construct a permanent improvement to a building, building site, or structure, including sitework:

(A) Alteration;

(B) Design;

(C) Erection;

(D) Reconditioning;

(E) Renovation;

(F) Repair; or

(G) Replacement;

(2) (A) "Construction agreement" means the bargain of the parties in fact, as found in the language of the parties or inferred from other circumstances, including course of performance, course of dealing, or usage of trade as provided in § 4-1-303.

(B) "Construction agreement" does not include an insurance contract, a construction bond, or a contract to defend a party against liability; and

(3) (A) "Construction contract" means the total legal obligation that results from the parties' agreement as supplemented by any other applicable law.

(B) "Construction contract" does not include an insurance contract, a construction bond, or a contract to defend a party against liability.

(b) A clause in a construction agreement or construction contract entered into after July 31, 2007, is unenforceable as against public policy to the extent that a party to the construction contract or construction agreement is required to indemnify, defend, or hold harmless another party against:

(1) Damage from death or bodily injury to a person arising out of the sole negligence of the indemnitee, its agent, representative, subcontractor, or supplier; or

(2) Damage to property arising out of the sole negligence of the indemnitee, its agent, representative, subcontractor, or supplier.

(c) A provision or understanding in a construction agreement or construction contract that attempts to circumvent this section by making the construction agreement or construction contract subject to the laws of another state is unenforceable as against public policy.

(d) A clause described under subsections (b) and (c) of this section is severable from the construction agreement or construction contract and shall not cause the entire construction agreement or construction contract to become unenforceable.

(e) The parties to a construction contract or construction agreement may enter into an agreement in which:

(1) The first party indemnifies, defends, or holds harmless the second party from the first party's negligence or fault or from the negligence or fault of the first party's agent, representative, subcontractor, or supplier;

(2) The first party requires the second party to provide liability insurance coverage for the first party's negligence or fault if the construction contract or construction agreement requires the second party to obtain insurance and the construction contract or construction agreement limits the second party's obligation to the cost of the required insurance;

(3) The first party requires the second party to provide liability insurance coverage for the first party's negligence or fault under a separate insurance contract with an insurance provider; or

(4) The first party requires the second party to name the first party as an additional insured as a part of the construction agreement or construction contract.