Indemnification

US commercial-market reference points; verify against the matter's jurisdiction pack.

Balanced position

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.

Common one-sided variants

Tilted toward the indemnified party (often the customer):

• Trigger of "any breach of this Agreement," converting every contract claim into an indemnified — and often uncapped — claim.
• Coverage of first-party (direct) losses, not just third-party claims.
• Indemnified party controls the defense and settles at the indemnitor's cost without consent.

Tilted toward the indemnifying party (often the provider):

• 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 in practice — notice within days as a strict condition precedent, sole-discretion settlement rights, or exclusive remedies limited to service modification.

Fallback ladder

1. Mutual, trigger-specific, third-party-only indemnities with standard defense-control and consent-to-settle terms (preferred).
2. Provider-only IP indemnity plus mutual indemnity for gross negligence, willful misconduct, and violation of law.
3. 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.
4. Notice as a condition only to the extent the indemnitor is actually prejudiced by late notice.

Below rung 4 — indemnity for "any breach," first-party losses, or settlement without consent — escalate.

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."