What Is A Deed Of Access & Indemnity? (2026 Updated)

If you’re stepping into a director role (or you’re running a company and appointing directors), it’s normal to get hit with a wave of questions about personal risk.

Directors make big calls, sign important documents, and often become the “face” of the business. So it makes sense you’d want clarity on what protections you do (and don’t) have if something goes wrong.

This guide is a refreshed, up-to-date explanation of how a Deed of Access & Indemnity works in New Zealand, why companies use it, and what to watch out for before you sign.

What Is A Deed Of Access & Indemnity (And Why Do Companies Use One)?

A Deed of Access & Indemnity (often called a “DA&I”) is a legal document between a company and a director (and sometimes other officers). It generally does two core things:

• Access: gives the director rights to access certain company documents (including after they leave the role) so they can respond to claims, investigations, or questions about decisions made during their time as director.
• Indemnity: provides a contractual promise from the company to protect (indemnify) the director against certain liabilities and legal costs incurred in connection with their role.

Companies use these deeds because they help attract and retain good directors. From a director’s perspective, it’s also a practical way to reduce the fear of “personal exposure” for decisions made in good faith.

Just as importantly, a properly drafted deed helps set expectations early, so everyone knows how legal costs, insurance and document access will be handled if a dispute or investigation comes up later.

DA&Is often sit alongside other governance documents like a Company Constitution and shareholder arrangements, and they should be consistent with them.

Who Typically Needs A Deed Of Access & Indemnity?

You’ll most commonly see a Deed of Access & Indemnity used for:

• Company directors (executive directors, non-executive directors, independent directors)
• Alternate directors (where applicable)
• Company officers (for example, a CFO or company secretary) where they have personal exposure due to the nature of their responsibilities

It’s especially relevant if:

• your company is growing and starting to have “real” governance (board meetings, investor reporting, formal decision-making)
• you’re bringing in outside directors who want director-friendly protections as a condition of joining
• you’re raising capital or planning an exit (buyers and investors often expect governance documents to be tidy and consistent)
• your directors operate in a regulated or higher-risk space (financial services, health, construction, data-heavy businesses, and so on)

If you’re also issuing equity to directors or aligning incentives, it’s common for a DA&I to exist alongside a Shareholders Agreement or other equity documents. These documents do different jobs, but they should “fit together” without contradictions.

What Does A Deed Of Access & Indemnity Usually Cover?

Every business is different, but most deeds cover a similar set of practical protections. Below are the clauses we commonly see (and the questions you should be asking yourself as you review them).

1) The Indemnity (What The Company Will Cover)

The indemnity clause usually sets out what the company will pay for or reimburse the director for, such as:

• legal costs of responding to claims, notices, examinations, or investigations
• damages, settlements, compensation, fines or penalties (where legally allowed)
• costs incurred in connection with acting as a director (for example, responding to requests for information)

In plain English, this is the “company has your back” part of the deed.

However, it’s never unlimited in practice. The deed must sit within what the law allows and what the company can realistically fund.

2) Exclusions (When The Indemnity Won’t Apply)

This is where a lot of the risk (and misunderstanding) sits.

A deed usually excludes indemnity for things like:

• fraud, dishonesty, or wilful breach of duty
• criminal liability (and sometimes certain regulatory penalties)
• improper personal gain
• liabilities where indemnity is not permitted under New Zealand law

These exclusions are normal. A DA&I is meant to protect directors acting properly, not to shield genuinely bad conduct.

If you’re reading a deed and you’re not sure whether the exclusions are “market standard” or unusually broad, it’s worth getting it reviewed. Small drafting differences can have big consequences later.

3) Advancement Of Legal Costs (Cashflow Matters)

One of the most practical clauses is whether the company will advance legal costs as they’re incurred (rather than reimburse them months later).

This matters because legal disputes can be expensive and time-sensitive. Even if you “win” later, you may not have the cashflow to fund a defence upfront.

Deeds often include a requirement for the director to repay advanced costs if it turns out the director wasn’t entitled to be indemnified (for example, where the director is ultimately found to have acted dishonestly).

4) Access To Company Documents (Including After You Leave)

The “access” part of the deed usually gives a director the right to inspect and take copies of company documents that relate to their time in office.

This can include:

• board minutes and resolutions
• financial records
• emails and internal reports relevant to a decision
• documents needed to respond to claims, audits, or regulator enquiries

This is particularly important after resignation, removal, or a sale of the business (when relationships can change quickly).

Without a clear contractual right of access, a former director might struggle to obtain documents needed to defend themselves, which can put them at a serious disadvantage.

5) Relationship With D&O Insurance

Many companies have Directors & Officers (D&O) insurance, and a deed often addresses how the indemnity interacts with that insurance.

Common points include:

• whether the company must maintain D&O insurance for a certain period
• whether the director can request evidence of cover
• how claims will be handled where insurance pays some (but not all) costs

A key tip: insurance and indemnities aren’t the same thing. Insurance depends on policy wording, exclusions, insurers’ decisions, and premium payments being up to date. A deed is a contractual promise by the company (again, within what the law allows).

6) Confidentiality And Return Of Documents

Because access rights often involve sensitive information, deeds usually include confidentiality obligations and rules around storing, using, and returning documents.

This overlaps with broader company confidentiality arrangements too, such as a Confidentiality Clause in service agreements or employment terms.

Are Deeds Of Access & Indemnity Enforceable In New Zealand (And What Are The Legal Limits)?

In New Zealand, companies can provide indemnities and (in many cases) insurance for directors and employees, but there are important limitations. You can’t “contract out” of everything, and you can’t use a deed to legitimise unlawful conduct.

Practically, this means:

• a deed should be drafted to align with the company’s governing documents and applicable legislation
• some liabilities can’t be indemnified (or may be restricted) depending on the circumstances
• even where indemnity is legally available, the company must still be financially able to meet it

This is why a well-drafted deed doesn’t just say “the company indemnifies the director for everything.” It sets a clear, legally compliant framework for support, while carving out situations where indemnity shouldn’t (or can’t) apply.

It’s also why governance documents matter. If your constitution or shareholder arrangements already deal with director indemnities, your deed needs to match those provisions rather than contradict them. That’s one reason businesses often tidy up their governance at the same time as adopting a Deed of Access & Indemnity.

When Should You Put A Deed Of Access & Indemnity In Place?

Most companies don’t think about director protections until they’re already in the middle of something stressful (a dispute, a shareholder fallout, or a regulator enquiry).

But like most business legals, this is one of those documents that works best when it’s done early-when everyone is aligned and the company has time to tailor it properly.

Common timing triggers include:

When You Appoint A New Director

If someone is joining your board, they’ll often ask about indemnities and insurance before they accept the role. Having a deed ready signals that your company takes governance seriously.

When You Raise Capital Or Bring In New Shareholders

Investment often comes with more formal governance expectations. If you’re updating your shareholder arrangements, it can be efficient to also update director protections at the same time, including through documents like a Founders Agreement (particularly at early stage) and then more formal shareholder governance as you scale.

When Your Business Starts Hiring Senior Leadership

As you hire executives and build internal processes, you may also be updating employment terms and policies. This is a good time to ensure director and executive arrangements are consistent, including your Employment Contract terms where relevant.

When You’re Planning A Sale, Merger Or Big Restructure

Transactions can create uncertainty and information gaps. A deed’s access provisions become particularly valuable if the company changes hands and former directors still need to respond to questions about decisions made pre-sale.

Even if everything is going well, having the right documents in place can make your company easier to manage and more attractive to investors and independent directors.

Common Mistakes To Avoid With A Deed Of Access & Indemnity

A Deed of Access & Indemnity is a powerful document, but it’s also easy to get wrong if you rely on a generic template or try to patch something together without aligning it to your business.

Here are some issues we commonly see.

Using A One-Size-Fits-All Template

Templates usually don’t reflect:

• your company’s constitution and shareholder arrangements
• your actual risk profile (industry, customers, regulatory environment)
• whether the director is also a shareholder, employee, or contractor
• how you want disputes and costs handled in practice

That mismatch is where conflicts pop up later-often at the worst possible time.

Not Checking What The Constitution And Shareholder Terms Already Say

Your Company Constitution may already include indemnity provisions. If the deed contradicts those, you can end up with uncertainty about which rules apply.

The same goes where your Shareholders Agreement includes director appointment and removal rules, confidentiality, restraint, or dispute processes that impact what “access” should look like in practice.

Forgetting About Document Access After A Director Leaves

Access is often the part that’s overlooked, but it can be just as important as the indemnity.

Imagine a director resigns, and 18 months later the company receives a claim relating to decisions made during that director’s time. Without a clear access right, the ex-director could be left trying to defend themselves with one hand tied behind their back.

Assuming The Deed Covers Everything (Including Uninsurable Or Non-Indemnifiable Liability)

A deed is a major layer of protection, but it isn’t a magic shield.

Even where indemnity is allowed, there are still real-world limits:

• the company might not have the funds to pay legal costs when needed
• insurance policies may have exclusions or conditions
• some conduct can’t be indemnified as a matter of law or policy

This is why governance planning matters. If you’re building a structure intended to scale, it’s also worth ensuring your other risk-management documents are in good shape, such as your Privacy Policy if you’re collecting customer or user data (because privacy complaints can lead to regulatory scrutiny and legal costs).

Not Documenting Board Decisions Properly

A DA&I helps with access to documents, but it can’t fix missing records. If you don’t keep clear board minutes and resolutions, it’s much harder for directors to show what was considered and why decisions were made.

Strong governance practices and well-drafted documents work together. One doesn’t replace the other.

Key Takeaways

• A Deed of Access & Indemnity is a contract (in deed form) between a company and a director that typically provides document access rights and an indemnity for certain liabilities and legal costs connected to the director role.
• The “access” protections are often just as important as the indemnity, especially after a director resigns, is removed, or the company is sold.
• Most deeds include exclusions for things like fraud or dishonesty, and indemnity will always be subject to what New Zealand law permits.
• D&O insurance and a deed are related but different protections; a deed is a contractual promise by the company, while insurance depends on policy wording and insurer decisions.
• A deed should be consistent with your Company Constitution and any Shareholders Agreement, so you don’t end up with conflicting governance rules.
• Avoid generic templates-director risk and governance documents need to be tailored to your company’s structure, industry, and risk profile.

If you’d like help putting a Deed of Access & Indemnity in place (or reviewing one before you sign), you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.