Indemnities in IT Contracts: Essential Training And Publications Available
Contracting professionals: We bet you know only too painfully well that indemnity clauses are often sticking points in negotiations about contracts involving information technology, be it software, SaaS, AI, or related offerings. And how sometimes, it seems the contracting parties are talking past each other, neither perhaps really understanding the other’s objections, proposed alternative language, […]
Watch Recording of David Tollen in Conversation with Adam Stofsky – The 2 Contract Terms That Can Kill Deals (Indemnities and Limitations of Liability)
David Tollen, founder of Tech Contracts Academy, and Adam Stofsky, CEO of Briefly, discussed indemnities and limitations of liability on LinkedInLive on April 9, 2025. Including the countless misunderstandings surrounding these common contractual clauses – and the counter-intuitive relationship between them. Whether you’re a legal professional, business owner, or anyone involved in deal-making, understanding these […]
David Tollen in Conversation with Adam Stofsky, April 9, 2025 on LinkedIn Live
We invite you to check out a complimentary LinkedIn Live session on April 9, 2025: “The 2 Contract Terms That Can Kill Deals.” David Tollen, founder of Tech Contracts Academy®, will be in conversation with Adam Stofsky, CEO of Briefly. We appreciate the invitation from Briefly, the program’s host. You can enroll here: https://www.linkedin.com/posts/briefly-inc_-activity In this […]
The Overuse of Indemnities
This week’s musings on tech contracts… Many American IT contracts feature a strange clause. One party (usually the customer) asks the other for an indemnity against, “any third party claim resulting from SuspectCo’s breach of this Agreement,” or words to that effect. That indemnity doesn’t just cover claims about data incidents or personal injury or […]
Don’t accept a “registered after the Effective Date” exception to your IP indemnity
This week’s musings on tech contracts… Some IP indemnities exclude claims about intellectual property registered after the contract’s effective date. The vendor argues that it shouldn’t be responsible for IP it couldn’t have known about when it signed the contract. “If we couldn’t have known, we’re not at fault if our product infringes.” That argument […]
Should the Limit of Liability Cover Indemnities?
This week’s musings on tech contracts… Contracting parties often debate whether the limit of liability should apply to indemnity obligations. IT contracts probably answer “no” more often than “yes.” But you can support either answer with good arguments. The Argument AGAINST Limiting Indemnity Liability The indemnity is unusual. It seems to address liability, but it […]
Next Live Master Class Series Runs Sept. 17-Oct. 17
Enroll now for our next live Tech Contracts Master Class™ series: Master Class #1 – September 17, 10 AM-12 PM PT: Prime Clauses: License, Subscription, IP Transfer, and PaymentMaster Class #2 – September 24, 10 AM-12 PM PT: Data Management, SLAs, Confidentiality, and Other General ClausesMaster Class #3 – October 8, 10 AM-12 PM PT: Indemnity, Limit of Liability, Warranty, […]
Your limit of liability might not work on your indemnity
The parties to IT contracts generally agree that the limit of liability (LoL) won’t apply to indemnities. After all, if one party takes responsibility for a third party lawsuit against the other (a third party indemnity) why would that responsibility suddenly end? If the vendor indemnifies against IP claims, for instance, why would it stop […]
Third Party Indemnities (in the Michael/Donald contract)
IT indemnities almost always address third party claims. That generates confusion, and contract-drafters often don’t even realize they misunderstand. Most clauses address the relationship between the parties. But in an indemnity against third party claims, the indemnitor isn’t liable to the other party (unless it breaches the indemnity). A third party indemnity is a no-fault […]
Don’t grant a fault-based indemnity
I think it’s a mistake to indemnify against claims resulting from indemnitor negligence or other wrongdoing. Indemnities against 3rd party claims usually specify the claims in question. They list IP claims, subcontractor compensation claims, or whatever. It doesn’t matter whether the indemnitor did something wrong under the typical clause. The vendor doesn’t just defend IP […]