Overly broad indemnification clauses that force users to defend the company against any claim 'arising from your use of the Service' — regardless of fault — are frequently held unconscionable under consumer protection doctrines and may be struck down entirely by courts, leaving the company with zero indemnity coverage. Sophisticated users, enterprise buyers, and their procurement counsel flag unlimited indemnification during contract review, stalling or killing deals. The clause also shifts liability for the company's own negligence onto users, which violates regulatory-conformance expectations and undermines content-integrity of the Terms as a good-faith agreement.
Low because the clause is often unenforceable in practice, but it still poisons deal velocity and signals sloppy drafting.
Narrow the indemnification scope to conduct the user actually controls and add a carve-out for the company's own fault. Replace any blanket 'arising from your use of the Service' language in your Terms of Service (typically content/legal/terms.mdx or app/legal/terms/page.tsx) with the three-prong structure below, which limits triggers to Terms violations, user content, and third-party rights infringement:
## Indemnification
You agree to indemnify [Company] from claims arising out of:
(a) your violation of these Terms,
(b) your User Content, or
(c) your violation of any third party's rights.
This obligation does not apply to claims arising from [Company]'s own
negligence, willful misconduct, or breach of these Terms.
ID: legal-pages-compliance.content-clarity.indemnification-reasonable
Severity: low
What to look for: Enumerate every relevant item. Find any indemnification clause in the Terms of Service. It may appear under "Indemnification," "Indemnity," or "Your Indemnification Obligations." Evaluate its scope: does it require the user to indemnify the company only for harms caused by the user's own violations of the Terms, or does it extend to any claim "arising from your use of the Service" regardless of fault? Check whether it indemnifies the company's attorneys' fees, whether there is a mutual indemnification provision (company also indemnifies user), and whether there is a carve-out for the company's own negligence or willful misconduct. An overly broad indemnification clause — one that requires users to indemnify for any claim tangentially related to their use of the service — can be unconscionable and unenforceable, but also deters users who read the fine print.
Pass criteria: At least 1 of the following conditions is met. If an indemnification clause is present, it is scoped to claims arising from the user's violation of the Terms, the user's own content, or the user's unlawful conduct — not to all claims arising from use of the service generally. It does not require users to indemnify for the company's own negligence.
Fail criteria: Indemnification clause requires users to defend and indemnify the company against any claim arising from their use of the service, without regard to fault. No carve-out for the company's own negligence or misconduct.
Skip (N/A) when: Terms of Service has no indemnification clause. Many consumer-facing ToS documents omit indemnification entirely — its absence is not a problem. This check only applies if an indemnification clause is present.
Detail on fail: Specify the overbreadth. Example: "Indemnification clause requires users to indemnify [Company] for 'any and all claims arising from your use of the Service' — this is broader than user violations and could include claims arising from the company's own defects." or "Indemnification clause has no carve-out for [Company]'s own negligence or willful misconduct.".
Remediation: Narrow the indemnification clause to be proportionate:
## Indemnification
You agree to indemnify, defend, and hold harmless [Company Name] and its officers,
directors, employees, and agents from and against any claims, liabilities, damages,
judgments, awards, losses, costs, and expenses (including reasonable legal fees)
arising out of or relating to:
(a) your violation of these Terms,
(b) your User Content, or
(c) your violation of any third party's rights.
This indemnification obligation does not apply to claims arising from [Company Name]'s
own negligence, willful misconduct, or breach of these Terms.
This scopes indemnification to what the user actually did wrong, not to the company's operation of the service generally.