Indemnification

Topic: Indemnification — scope, triggers, defense control. Contract type: All commercial agreements; IP indemnity weighted to technology deals. Jurisdiction: US commercial market; verify against the matter's jurisdiction pack. Positions are firm-configurable defaults overridable via .dochaus/profile.md.

Preferred

Mutual indemnities limited to third-party claims, each tied to a specific trigger: the provider indemnifies for third-party claims that the service infringes IP rights; each party indemnifies for third-party claims arising from its gross negligence, willful misconduct, or violation of law. The indemnifying party controls the defense and settlement, but may not settle in a way that admits fault or imposes obligations on the indemnified party without its consent; the indemnified party gives prompt notice and reasonable cooperation.

Provider shall defend Customer against any third-party claim alleging that the
Service, as provided by Provider and used in accordance with this Agreement,
infringes such third party's intellectual property rights, and shall indemnify
Customer against damages finally awarded or amounts paid in settlement of such
claim. The indemnifying party shall control the defense and settlement of the
claim, provided it may not settle any claim in a manner that admits liability
of, or imposes any obligation on, the indemnified party without that party's
prior written consent, not to be unreasonably withheld.

Off-market variants to watch. Tilted to the indemnified party: trigger of "any breach of this Agreement," converting every contract claim into an indemnified (often uncapped) claim; coverage of first-party losses, not just third-party claims; indemnified party controls and settles at the indemnitor's cost without consent. Tilted to the indemnifying party: no IP-infringement indemnity at all in a technology deal, or one gutted by exclusions (any combination, any configuration, any customer data); indemnity conditioned on requirements that defeat it (notice within days as a strict condition precedent, sole-discretion settlement, remedy limited to service modification).

Fallbacks (ordered)

1. Offer when the counterparty resists mutual trigger-specific indemnities: provider-only IP indemnity plus mutual indemnity for gross negligence, willful misconduct, and violation of law.
2. Offer when the provider needs IP-indemnity carve-outs for risk it does not control: IP indemnity with customary exclusions (combinations not provided by the provider, use in breach, customer-provided materials) and the usual mitigation options — procure the right, modify, replace, or refund prepaid fees as last resort.
3. Offer when the counterparty insists notice be a hard condition: notice as a condition only to the extent the indemnitor is actually prejudiced by late notice.

Walk-away floor

Indemnity for "any breach," coverage of first-party losses, or a right to settle without the indemnified party's consent.

Escalation trigger

At or below the floor, do not concede. Route to the supervising lawyer for the matter (or the .dochaus/profile.md Escalation Rules contact) — indemnity scope is where hidden uncapped exposure lives and warrants a partner sign-off.

Rationale: Indemnity scope and its interaction with the liability cap is where most hidden uncapped exposure lives; the trigger list matters more than the word "indemnify."