Upon completion of this intensive course, participants will be able to:

• Distinguish between contractual indemnity, insurance, and limitation of liability as risk mitigation tools.
• Draft and negotiate enforceable, tailored indemnity clauses that clearly define scope and triggers.
• Determine when to request or offer broad, intermediate, or limited form indemnity.
• Align insurance requirements (e.g., CGL, professional liability) precisely with contractual obligations.
• Manage the negotiation of "consequential loss" exclusions and their impact on indemnity claims.
• Develop contractual strategies for transferring third-party claims and litigation risk.
• Structure "hold harmless" and exculpatory clauses in compliance with relevant state or national laws.
• Create an internal checklist for reviewing a counterparty's insurance certificates and endorsements.

• Senior Contract Managers and Directors
• Risk Management Professionals and Analysts
• Corporate Insurance and Treasury Specialists
• In-house Legal Counsel focusing on commercial agreements
• Procurement and Sourcing Managers negotiating complex T&Cs
• Project Managers with liability exposure
• Business Unit Heads approving contract risk profiles

• Advanced contract redlining session focused purely on indemnity and liability clauses.
• Case studies examining how courts have interpreted ambiguous indemnity language.
• Role-playing scenarios where participants negotiate insurance coverage requirements.
• Group activity creating a standardized risk transfer matrix for an organization.
• Discussions with insurance brokerage mock-ups to understand policy alignment.

Unit 1: The Fundamentals of Contractual Risk Transfer

• Overview of risk sharing, risk retention, and risk transfer mechanisms.
• The legal distinction between warranties, covenants, and indemnities.
• Understanding the interplay of liability caps and indemnity obligations.
• Analyzing statutory and common law limitations on risk transfer.

• Key components: the promisor (indemnitor), the promisee (indemnitee), and the trigger event.
• Drafting for specific types of claims: third-party, first-party, and mutual claims.
• The crucial role of the "duty to defend" vs. "duty to indemnify."
• Ensuring clear language on survival and duration of the indemnity obligation.

Unit 2: Strategic Indemnity Negotiation

• Analyzing broad, intermediate, and limited form indemnity and their jurisdiction-specific enforceability.
• Strategies for limiting the indemnity obligation (e.g., to negligence or willful misconduct).
• Addressing specific risks: IP infringement, data breach, and gross negligence.
• The importance of specifying procedures for tender of defense and claim control.

• Understanding the "consequential damages" waiver and its relationship to indemnity.
• Drafting carve-outs to limitations of liability for indemnity obligations.
• Reviewing "Bargaining Power" and its effect on the enforceability of one-sided clauses.
• Current trends and judicial attitudes toward contractual risk transfer.

Unit 3: Linking Contractual Risk to Insurance

• Deep dive into Commercial General Liability (CGL) and its fit with contractual indemnity.
• Professional Liability (E&O), Cyber Insurance, and Directors and Officers (D&O) coverage.
• The importance of named additional insured status and primary/non-contributory clauses.
• Structuring minimum insurance requirements for different tiers of vendor risk.

• Reviewing and accepting Certificates of Insurance (COIs) and endorsements.
• Contractual remedies for failure to maintain required insurance coverage.
• The concept of subrogation waiver and its benefit to the indemnified party.
• Establishing ongoing monitoring of insurance validity throughout the contract term.

Unit 4: Advanced Contractual Mechanisms

• Distinction between express and implied warranties (e.g., merchantability, fitness).
• Using guarantees and corporate bonds for financial backing of contractual obligations.
• Drafting performance metrics that trigger risk transfer mechanisms.
• The role of liquidated damages as a pre-determined risk allocation tool.

• Negotiating general releases and specific waivers of liability.
• Legal limitations on clauses that waive statutory or consumer rights.
• Drafting clear, conspicuous language for “hold harmless” provisions.
• Best practices for multi-party agreements and complex cascading liabilities.