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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Commercial Law

Date & Time
  • event Date

    Tuesday, March 11, 2025

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE program will provide counsel with strategies for structuring and negotiating business continuity and disaster recovery (BCDR) provisions in strategic technology and commercial contracts.

Faculty

Aaron K. Tantleff
Partner
Foley & Lardner LLP

Mr. Tantleff, CIPP/E, is a partner in Foley’s Technology Transactions, Cybersecurity, and Privacy; and the Environmental, Social, and Corporate Governance (ESG) practice groups. He represents companies in various technology, privacy, security, information management, open source, and intellectual property matters, such as the development of compliance policies, programs, cybersecurity breach preparation, incident response, big data, and data monetization initiatives. Mr. Tantleff also regularly represents clients in mergers and acquisitions, outsourcing transactions, strategic alliances, development and licensing arrangements, supply and distribution arrangements, and other strategic and collaborative transactions involving significant technology and intellectual property. He  is a frequent speaker on technology, security, privacy, and outsourcing matters, and is regularly quoted in The Wall Street Journal, Reuters, Politico, Fortune, and other top-tier publications on topics such as cyberattacks, privacy law developments, and data protection, including regarding the General Data Protection Regulation (GDPR) and the Asia Pacific Cross Border Privacy Rules. Mr. Tantleff has been retained for data protection, cybersecurity, monetization of big data/IoT programs, and data breach response, remediation, and simulations by companies across all industries and sizes, domestically and abroad, including several Fortune 100 companies. He has also counseled several state legislators on cybersecurity legislation.

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Michael R. Overly
Partner
Foley & Lardner LLP

Mr. Overly focuses his practice on drafting and negotiating technology related agreements, software licenses, hardware acquisition, development, disaster recovery, outsourcing agreements, information security agreements, e-commerce agreements, and technology use policies. He counsels clients in the areas of technology acquisition, information security, electronic commerce, and on-line law. He is the co-author of A Guide to IT Contracting: Checklists, Tools and Techniques (CRC Press, 2012).

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Description

BCDR provisions are increasingly vital, particularly in technology contracts. These clauses have become a primary concern for companies that depend on third-party technology providers to support mission-critical services. Recent disruptions, including the devastating wildfires in Los Angeles, have highlighted the vulnerability of even well-established organizations to unexpected business interruptions. Such events underscore the need for clear, enforceable BCDR clauses that address both the immediate recovery of operations and long-term resilience in technology service agreements.

For contract attorneys, drafting and negotiating BCDR terms requires expertise in risk management, contractual remedies, and the nuances of service level agreements. These provisions often involve concepts such as recovery time objectives (RTOs), recovery point objectives (RPOs), and cascading responsibility among multiple parties, including subcontractors and cloud service providers. Additionally, attorneys must be adept at balancing business needs with legal protections to ensure that these clauses are both practically feasible and enforceable. Poorly drafted or ambiguous BCDR terms can expose businesses to significant operational and financial risks, particularly in the aftermath of large-scale disasters, where inadequate disaster recovery plans can lead to extended downtimes and significant losses.

Listen as our expert panel provides practical strategies for drafting and negotiating BCDR clauses, key legal and operational risks to consider, and how to structure these provisions to protect organizations from risks associated with business interruptions.

Outline

  1. Role and scope of BCDR
    1. The growing importance of BCDR clauses in today's tech contracts
    2. Legal implications of BCDR failures: financial loss, liability, and regulatory exposure
    3. Key distinctions between BCDR provisions in different types of technology agreements (cloud services, SaaS, IT outsourcing, etc.)
  2. Key legal concepts
    1. RTOs and RPOs
    2. Performance and recovery timelines
    3. Enforceability
    4. Third-party responsibility and liability
  3. Negotiating effective BCDR terms
    1. Remedies, penalties, and performance guarantees
    2. Force majeure
    3. Common pitfalls
  4. Emerging trends and evolution of BCDR clauses

Benefits

The panel will review these and other key issues:

  • What are the essential components of a legally sound BCDR clause in a technology contract?
  • How can contract attorneys navigate the complexities of negotiating BCDR terms with sophisticated vendors?
  • What legal principles underpin the enforceability of BCDR clauses, and how can these terms be structured to minimize litigation risks?