IP Agreements: Structuring Indemnification and Limitation of Liability Provisions to Allocate Infringement Risk

Description

Indemnification provisions are often overlooked but are an essential part of any IP agreement. Effective drafting and negotiation of indemnification provisions are crucial to protecting valuable business property interests, reducing the risk of future litigation, and minimizing litigation costs if a dispute arises.

When structuring indemnification provisions, in addition to considering who is covered and who is indemnifying whom, counsel must keep in mind who will control the defense in litigation. Further, inclusion of limitation of liability provisions will reduce the risk and decrease the incentive for litigation. Given these litigation concerns, counsel should consider the types of damages, claims, and activities to cover in the agreement.

Counsel to all parties must carefully consider the scope of liability covered by the indemnification obligation and any exclusions, as well as liability triggers and indemnification of third parties when negotiating the contract terms.

Listen as our authoritative panel of IP attorneys examines indemnification and limitation of liability provisions in IP agreements and what factors IP counsel should account for when negotiating and drafting these provisions. The panel will offer best practices for negotiating and structuring these provisions to allocate risk.