Liability and Indemnification in Generic Transactions Explained
Stuart Moore 4 December 2025 14

When you sign a contract-whether it’s buying a business, hiring a vendor, or licensing software-you’re not just agreeing to pay or deliver something. You’re also agreeing to take on risk. And that’s where liability and indemnification come in. These aren’t just legal buzzwords. They’re the actual safety nets that decide who pays when things go wrong.

What Exactly Is Indemnification?

Indemnification is a contract promise: one party agrees to cover the other’s losses. If your software vendor gets sued because their code steals user data, and your contract includes an indemnity clause, they’re on the hook for your legal bills, settlements, and even fines. It’s not about blame-it’s about who’s financially responsible before any problem even happens.

This isn’t optional in most business deals. According to legal analysts, indemnification clauses appear in nearly every commercial contract. They’re the default way parties split risk. Without them, every lawsuit could turn into a financial disaster for one side. With them, both sides know the rules ahead of time.

The Three Words That Matter: Indemnify, Defend, Hold Harmless

People often use these terms interchangeably, but they mean very different things:

  • Indemnify means: “I’ll pay you for your losses.” This includes court fees, settlements, or damages awarded against you.
  • Defend means: “I’ll hire lawyers and run your defense.” This is huge. If you’re being sued, having the other side pay for your legal team can save you tens of thousands-even hundreds of thousands-of dollars.
  • Hold harmless means: “You can’t sue me back, even if I’m partly at fault.” This stops the other party from turning around and claiming you caused their problem.
In practice, most contracts say “indemnify, defend, and hold harmless.” But that’s not always necessary. A well-drafted clause might only require one or two of these. The more you ask for, the harder it is to get-and the more risk you’re shifting to the other side.

What Triggers an Indemnity Claim?

Not every problem qualifies. The contract has to spell out exactly what events start the indemnity obligation. Common triggers include:

  • Breach of contract (like failing to deliver on a promise)
  • False statements in the agreement (called “representations and warranties”)
  • Third-party lawsuits (like IP infringement or data breaches)
  • Violations of law (tax issues, environmental violations, labor violations)
For example: A company buys a SaaS product. Later, the vendor’s outdated security causes a data leak. Customers sue the buyer for failing to protect their data. If the vendor’s contract includes indemnification for “breaches of security obligations,” the vendor must pay the buyer’s legal costs and any damages awarded.

Without a clear trigger, the clause is useless. Vague language like “any losses related to the services” will get challenged in court. Specificity wins.

How Long Does Indemnification Last?

Time matters. Indemnity doesn’t last forever. Most contracts set a “survival period” for representations and warranties. These are the promises each side makes before signing.

  • Fundamental reps (like “we own this company,” “we have authority to sign,” “no hidden debts”) usually survive 3 to 5 years-or even longer. These are core to the deal.
  • Non-fundamental reps (like “all employee contracts are up to date” or “we don’t owe any software licenses”) often survive only 12 to 18 months.
If you don’t find out about a problem within the survival period, you can’t claim indemnity. That’s why buyers do deep due diligence before closing. And why sellers push to shorten survival periods.

A towering sugar skull cap with a golden chain, a tiny figure measuring a deductible, legal papers and insurance banners floating in dark crimson and teal tones.

What’s the Cap? What’s the Deductible?

Even if indemnity applies, it’s not unlimited. Two key limits control how much you can recover:

  • Deductible (or basket): This is the amount of losses you must absorb before indemnity kicks in. For example: “Seller will indemnify only after buyer’s losses exceed $100,000.” That’s called a “deductible basket.” Some contracts use a “tipping basket”-where once you hit $100,000, the seller pays everything, even the first dollar.
  • Cap: This is the maximum amount the indemnifying party will pay. It’s often tied to the deal price. In a $5 million acquisition, the cap might be $1 million-or even the full $5 million for fundamental breaches.
These limits are hotly negotiated. Buyers want low deductibles and high caps. Sellers want the opposite. The middle ground depends on who has more leverage.

Mutual vs. One-Sided Indemnity

Most deals use one-sided indemnity: the seller indemnifies the buyer. That’s standard in M&A, software sales, and service contracts.

But in some cases, both sides protect each other. That’s mutual indemnity. It’s common in:

  • Construction contracts (both parties want protection if a subcontractor gets hurt)
  • Joint ventures
  • Partnerships where both sides bring assets or services
In a mutual agreement, each side covers the other’s losses from their own negligence. But mutual indemnity is rare in simple vendor-buyer deals. Why? Because the buyer usually has more to lose-and more bargaining power.

Insurance Requirements Are Part of the Deal

If someone promises to indemnify you, but they’re broke, the clause is worthless. That’s why contracts often require the indemnifying party to carry insurance.

Common requirements:

  • General liability insurance ($1-$5 million)
  • Professional liability (errors & omissions) for tech or consulting firms
  • Cyber liability insurance for data handling
The contract might say: “Vendor shall maintain cyber liability insurance of at least $2 million, naming Buyer as additional insured.” That way, if a breach happens, the insurance pays-not the vendor’s bank account.

Without this, you’re trusting a promise. With it, you’re trusting a policy.

How Claims Are Made (And Why Timing Matters)

You can’t just send an email saying “I’m suing you.” The contract says exactly how to file a claim:

  • Notice must be in writing
  • Must be sent within 30 or 60 days of discovering the issue
  • Must include details: what happened, who’s involved, how much it’s costing
If you miss the deadline? You lose your right to indemnity. Courts enforce these rules strictly. One company in Texas lost a $2 million claim because they waited 90 days to notify the vendor. The contract said 60. No exceptions.

Also, who controls the defense? If you’re being sued, do you pick your lawyer? Or does the indemnifying party? Most contracts give the indemnifier control-but they must act in good faith. If they settle for too much, you might still have a claim.

An ofrenda altar with a SaaS contract, insurance candle, and ticking clock, ghostly lawyer reaching with a lawsuit scroll, marigolds and legal terms glowing in the background.

Why Sellers Always Fight These Clauses

In almost every deal, sellers are the ones on the hook. Buyers want protection. Sellers want to limit exposure.

That’s why sellers push back hard on:

  • Scope of indemnity (limiting it to only intentional misconduct)
  • Survival periods (trying to cut them to 6 months)
  • Removing “hold harmless” (so they can sue back if needed)
  • Adding exclusions (like “no indemnity for indirect damages”)
Indirect damages-like lost profits, reputational harm, or lost customers-are often excluded. Courts in many states won’t enforce indemnity for these unless it’s written clearly. So sellers often add: “Indemnity does not cover consequential, punitive, or lost profits damages.”

Buyers hate that. But it’s standard. And if you’re selling, it’s smart.

What Happens If There’s No Indemnity Clause?

Then you’re back to basic law. You can sue for breach of contract. You can sue for negligence. But you have to prove fault. You have to prove damages. And you have to pay your own lawyers until the case ends.

Without indemnity, a $50,000 legal bill could turn into a $500,000 disaster. That’s why even small contracts-like a $10,000 software license-include an indemnity clause. It’s not about big deals. It’s about predictability.

Real-World Example: A Cloud Hosting Deal

A small startup signs a cloud hosting contract with a provider. The contract says:

  • The provider will indemnify the startup for third-party claims of IP infringement.
  • The provider must carry $5 million in cyber liability insurance.
  • Claims must be notified within 30 days.
  • Survival period: 2 years after contract ends.
  • No cap on indemnity for IP claims.
Six months later, a patent holder sues the startup, claiming the hosting software uses their patented algorithm. The startup notifies the provider within 25 days. The provider hires a lawyer, fights the case, and settles for $750,000. The provider pays it all-because the clause said they would.

Without that clause? The startup would’ve been on the hook for every dollar.

Bottom Line: Know What You’re Signing

Indemnification isn’t something you can ignore. It’s not boilerplate. It’s the financial backbone of your deal. Whether you’re buying, selling, or contracting, you need to ask:

  • What exactly are they promising to cover?
  • How long does it last?
  • Is there a cap or deductible?
  • Do they have insurance?
  • Who controls the defense?
If you can’t answer these, you’re signing a blank check. And in business, that’s the most dangerous thing you can do.

Is indemnification the same as insurance?

No. Indemnification is a contract promise to pay losses. Insurance is a policy where a third-party insurer pays claims. But contracts often require the indemnifying party to have insurance so they can actually pay. One is a promise; the other is a financial backstop.

Can I remove indemnification from my contract?

Technically yes-but it’s risky. Most buyers won’t sign without it. If you’re a seller, removing it might mean losing the deal. If you’re a buyer, removing it leaves you exposed. The goal isn’t to eliminate it-it’s to make it fair and limited.

What if the indemnifying party goes bankrupt?

Then you’re out of luck. That’s why insurance requirements are critical. If the other side has insurance, you can file a claim with the insurer. Without insurance, your indemnity clause is just a piece of paper.

Do indemnity clauses work in all states?

Most do, but some states limit them. For example, some states won’t enforce indemnity for your own negligence unless it’s written in very clear language. Always check the governing law clause. It should say which state’s laws apply.

Why do lawyers spend so much time negotiating indemnity?

Because it controls who pays when things go wrong. In a $10 million deal, a poorly written indemnity clause could cost one side millions. It’s not about legal jargon-it’s about money, risk, and control. That’s why it’s the most negotiated part of any contract.