How to Track Exclusive Remedy and Fraud Carve-Outs

How to track exclusive remedy is a claims-path ledger from signing through survival, not a one-line “indemnity only” flag. For each signed deal, log whether indemnification is the exclusive remedy, which claims are carved out (fraud, injunctive relief, purchase-price adjustment, RWI), how fraud is defined, whether fraud is limited to representations in the agreement, how this sits next to the cap, and status of any claim that tries to go around indemnity. Raziel's indemnity cap tracking page is the dollar ceiling. This page is whether a buyer can step outside that ceiling.

This is not legal, tax, or investment advice. Raziel does not provide it. Copy the exclusive-remedy sentence and the fraud definition. Do not invent an 89 percent default onto a silent deal.

What this exclusive-remedy ledger is (and is not)

An exclusive-remedy clause says the indemnification article is the sole path for claims about the deal, usually with listed exceptions. Goulston & Storrs, summarizing the ABA’s 2025 Private Target M&A Deal Points Study (139 agreements from 2024 and Q1 2025), reports that such a provision was included in 89% of those deals. Of agreements with that provision, a fraud carve-out was present in 85%. Goulston notes a trend toward defining fraud with some specificity, often limiting the carve-out to actual or intentional fraud. Wagner Hicks, summarizing the same 2025 Study, reports that only 11% of deals now leave fraud undefined (the majority approach as recently as the 2016-17 study), that 85% of acquisition agreements still include a specific fraud carve-out, and that 70% of those agreements expressly limit the carve-out to fraud resulting from the representations made in the acquisition agreement itself (up from 52% in the prior study). Those are study snapshots. Your exclusive-remedy sentence and your fraud definition control.

Seven columns on one exclusive-remedy row

Open one row per signed deal. Attach the indemnification article, the fraud definition, the non-reliance clause, and any RWI sole-recourse language.

• Exclusive or not. Goulston: 89% of the 2025 Study included an exclusive-remedy provision. Copy the sentence (or “silent”). Do not paste 89% onto a deal that leaves other remedies open.

• Listed carve-outs besides fraud. Specific performance, injunctive relief, purchase-price adjustment, RWI claims, and any other named path. A working-capital true-up that is carved out of exclusive remedy still belongs on the working-capital row. Store that it is a permitted path here.

• Fraud carve-out present. Goulston: 85% of exclusive-remedy deals carved out fraud. Wagner: 85% of acquisition agreements included a specific fraud carve-out. Name which denominator you are citing, then copy whether yours carves fraud.

• Fraud defined or undefined. Wagner: only 11% of deals leave fraud undefined, down from the majority in 2016-17. Copy the definition (actual, intentional, common-law, or a named statute). Do not treat “fraud” as a blank check if the paper defines it narrowly.

• Limited to agreement representations. Wagner: 70% of agreements with a fraud carve-out limit it to fraud in the representations made in the acquisition agreement (52% in the prior study). Extra-contractual emails and management presentations are a different fight. That fight also lives on the non-reliance row.

• Cap interaction. Whether fraud (as defined) is outside the general cap, outside the basket, or still inside a special cap. The cap row stores the dollars. This cell stores whether a fraud claim is allowed to ignore those dollars.

• Status. Copied, claim noticed under indemnity, claim noticed as fraud outside indemnity, claim dismissed as exclusive-remedy barred, paid, or closed. When cash moves, book the date.

Copy the definition, not the 89 percent print

Do not paste 89% onto a silent remedies article. Do not paste 70% onto a carve-out that covers extra-contractual fraud. Do not fold exclusive remedy into the indemnity-cap row. The cap is how high indemnity goes. Exclusive remedy is whether a buyer can leave indemnity altogether. Keep them separate so a “fraud” letter is classified against the written definition, not against a nickname.

When the ledger holds

The row holds if the seven cells are copied from the PDFs (or marked missing). It fails when you invent a fraud definition, ignore a listed carve-out, or treat RWI sole recourse as if it erased exclusive remedy. Raziel's alternative asset dashboard is where the clause, the definition, and any claim cash should sit together. Raziel does not litigate your carve-outs. Copy the seven columns.