Your client processes biometric data and needs a rather unusual indemnity that runs from the customer to the vendor if the customer's end users bring claims under state privacy laws. You draft the clause. It's tailored, defensible, and your client signs off. Then the counterparty's counsel sends it back, redlined to oblivion, with a note that says "this is non-standard."
The problem is not that the clause is non-standard. It is unexplained.
Contracts don't show their work. The operative text says what the parties must do, but it never says why. That silence is where negotiation friction lives. A provision that looks aggressive in isolation often looks reasonable once you understand the business rationale behind it.
DC Toedt, Redline (redline.net) member since 2013, floated an idea in a discussion on selling reverse indemnity to counterparties that deserves more attention than it gets: the use of footnotes. Attach a footnote to the operative clause explaining why it's drafted the way it is. Not a recital. Better than a side letter. A footnote, right there on the page, tethered to the provision it explains.
