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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, February 20, 2024

  • 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 technology and business counsel on drafting and negotiating enforceable limitation of liability (LOL), indemnification, and warranty provisions in software agreements. The panel will discuss crucial considerations for crafting the clauses, potential enforceability challenges, and the interplay between the provisions.

Faculty

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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William S. Galkin
Attorney
Galkin Law, LLC

Mr. Galkin is an information technology and internet lawyer who has dedicated his legal practice to representing internet, e-commerce, information technology and new media businesses across the U.S. and around the world. He serves as a trusted adviser to startup, emerging, established and multinational corporations on their core commercial transactions including corporate formation and transitions, intellectual property, technology and software development, licensing, transfer, and distribution,  regulatory compliance, as well as agreements for online businesses, including, SaaS offerings, website terms of use, privacy policies,  development agreements, affiliate agreements and sweepstakes/contest rules and compliance. Mr. Galkin’s broad experience gained during more than 20 years in practice allows him to provide cutting-edge, creative and efficient solutions to complex problems.

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Benjamin B. Kabak
Attorney
Loeb & Loeb LLP

Mr. Kabak focuses his practice on technology and outsourcing matters. He advises companies in a variety of industries, including financial services, healthcare and personal care, on business process and IT outsourcing. Mr. Kabak drafts and negotiates corporate technology agreements including those for software and data licenses, subscription services, consulting and professional services engagements, hardware purchases, managed hosted and cloud computing services, and joint ventures.

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Description

While warranty, LOL, and indemnification provisions are significant in software contracts, they are among the most complex and confusing to draft and interpret. Technology and business counsel must strategically negotiate these provisions to protect clients' rights.

Warranty provisions outline assurances that the software will perform according to contract specifications. Software developers frequently seek broad disclaimers of warranties and strict indemnification clauses.

LOL provisions seek to limit the dollar amount and type of damages allowed in the event of a breach of contract. Counsel must avoid ambiguity in drafting these clauses and consider the software vendor's and the customer's interests.

Indemnification clauses allow the parties to contractually shift risk and reduce liability exposure for third-party claims against them when entering into a software agreement. Valid indemnification clauses clearly outline risks indemnified or excluded from indemnity and define procedures for making an indemnification claim. Different state laws may affect certain aspects of these provisions.

Listen as our authoritative panel explains best practices for drafting and negotiating warranty, LOL, and indemnification provisions in software agreements. The panel will provide strategies for avoiding common negotiation pitfalls, anticipating and overcoming enforcement hurdles, and reconciling the three clauses.

Outline

  1. Drafting considerations and best practices for warranty, LOL, and indemnification clauses
  2. Interplay between provisions
  3. Enforceability challenges

Benefits

The panel will review these and other crucial issues:

  • How can technology and business counsel mitigate and allocate risk when drafting and negotiating warranty, LOL, and indemnification provisions in software agreements?
  • What are the most commonly negotiated warranty and indemnification provisions in different types of software and technology agreements?
  • What disputes arise in negotiating these clauses, and what are practical strategies for resolving them?
  • How should the various state laws and the courts' varying interpretations of indemnification provisions impact drafting these provisions and the parties' ability to recover?
  • What challenges do parties often face when making an indemnification claim?