indemnification

Identify who is the indemnitor and who is the indemnitee — confirm the roles match your actual risk allocation.

Check whether the indemnification is mutual or one-sided; one-sided clauses require close scrutiny of scope.

Confirm there is a cap on indemnification liability, ideally tied to insurance coverage or fees paid.

Verify the triggering events are specific — broad 'arising out of' language can capture claims outside your control.

Check whether defense costs are included — indemnification without a defense obligation leaves you funding your own litigation.

Review the notice requirement — missing the deadline can void the indemnification.

Confirm how long the obligation survives after contract termination.

Cross-reference with the limitation of liability clause to ensure they are consistent, not contradictory.

Without a clear indemnification clause, courts apply default state-law rules that often split liability based on comparative fault rather than the risk allocation the parties intended.

A vague clause — one that says only each party shall indemnify the other without scope — routinely produces coverage disputes about whether a particular claim falls within it, spawning satellite litigation over the clause itself.

If the defense obligation is omitted, the indemnitee must fund its own defense and seek reimbursement later, a timing mismatch that creates serious cash-flow exposure during active litigation.

Ambiguity about which events trigger indemnification — arising out of vs. caused by — gives courts discretion that can expand the obligation beyond what the indemnitor agreed to absorb.

Without a survival period, parties dispute whether indemnification continues after contract termination for claims related to pre-termination performance.