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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, October 31, 2023

  • 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 course will guide business counsel in drafting and negotiating indemnification and hold harmless provisions in commercial contracts. The panel will discuss critical elements of indemnification agreements, including scope, exclusions, and cost allocation. The panel will review enforceability challenges, the interplay with insurance coverage, and strategies for avoiding common negotiation pitfalls.

Faculty

Wendy Kearns
Partner; Co-Chair Technology, Communications, Privacy & Security Practice; Chair, Technology Practice
Davis Wright Tremaine LLP

Ms. Kearns began work in the technology industry in Silicon Valley as a software developer, software product manager, and a business development. She focuses on technology transactions and helps clients structure and negotiate complex agreements in a variety of technologies including cloud, internet of things, artificial intelligence, technology, media, advertising, video games, data licensing, and other software and hardware related technology fields. Based on her experience in business development, Ms. Kearns counsels companies on how to get transactions completed efficiently and effectively to grow and maintain their businesses. Outside of deal work, she helps companies launch new products and features by analyzing legal issues in product development and commercialization. She is a frequent speaker at legal technology industry events.

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Kraig Baker
Partner
Davis Wright Tremaine LLP

Mr. Baker is often the first person clients call for help with new technology, new platforms, and new distribution techniques—pretty much anything that’s a new undertaking for a company. He has a practical approach to transactions and advice that is particularly well suited to clients trying something new, and helps clients prioritize real risks from theoretical risks, and translates legal concepts into an approachable format for people with different levels of legal training. In particular, Mr. Baker helps clients with intellectual property licensing and operational contracts across the full range of issues within technology, innovation, media, entertainment, sports, advertising, privacy, and social media matters, with an emphasis on content, mobile, innovative technology, digital media, and interactive entertainment.

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Description

Most contracts--sales agreements, professional services agreements, leases, lending agreements, software licenses, construction contracts, and M&A agreements--include indemnification and hold harmless provisions. These clauses have become ubiquitous in all industries and specialties. They allow parties to allocate risk and reduce liability exposure. Indemnification clauses must clearly outline the risks covered by the indemnity clause(s), exclusions from indemnity, and procedures for making an indemnification claim.

When negotiating and drafting indemnification and hold harmless clauses, counsel for contracting parties must anticipate and address potential statutory limitations as well as enforcement and procedural hurdles. Attorneys must also consider how insurance coverage will interplay with indemnification and hold harmless provisions, a step often overlooked. In addition, attorneys must consider fraud and abuse regulations in highly regulated industries such as the healthcare sector.

Listen as our authoritative panel of attorneys explains best practices for drafting and negotiating indemnification and hold harmless provisions in commercial contracts. The panel will provide strategies for avoiding common negotiation pitfalls, anticipating and overcoming enforcement hurdles, and reconciling indemnification with insurance coverage.

Outline

  1. Drafting indemnification and hold harmless provisions
    1. Statutory and common law limitations
    2. High priority provisions
    3. Exculpatory clauses
  2. Enforcing indemnification provisions
  3. Interplay with insurance coverage

Benefits

The panel will review these and other crucial issues:

  • What are statutory and common law indemnity parameters, and how can parties alter these obligations contractually?
  • How can business counsel best mitigate risk when drafting and negotiating indemnification and hold harmless provisions in various contracts?
  • How have the courts' varying interpretations of indemnification provisions impacted parties' ability to shift liability in contracts?
  • What enforceability challenges do parties commonly face when seeking to make an indemnification claim?