About the Course
Introduction
This CLE course will examine limitation of liability provisions and how to properly exclude certain types of damages from such disclaimers and/or caps using carveouts to standard disclaimers and caps on liability. The panel will discuss best practices to limit liability for incidental, punitive, indirect, special, exemplary, extraordinary, or consequential damages or lost profits, as well as caps of liability.
Description
Limitation of liability provisions are standard in almost every contract and are essential in helping the contract parties limit their risk. But these provisions may also contain broad disclaimers and exceptions.
Some exclusions are commonly accepted (as negotiated by the parties) since if certain damages were not excluded or "carved out" of standard disclaimers of and caps on liability, certain breaches of the contract would have either no remedy or a substantially inadequate remedy.
Issues can arise out of "bad conduct" carveouts in indemnification and other limitation of liability provisions that, when not properly drafted, can defeat the intended purpose of limited liability provisions. Common practices for limitation of liability provisions also may vary based on the type of contract. For example, contracts for sales of businesses may have carveouts to liability limitations that are not commonly found in supply or services contracts.
Listen as our expert panel discusses the types of carveouts that are typical in limited liability provisions, when such carveouts should be employed, and what risks can (and cannot) be mitigated.
Presented By
Mr. Allen negotiates favorable commercial contracts for organizations in the areas of software as a service (SaaS) licensing, software licensing, IP sales and acquisitions, and data transfer and data processing. He has also advised clients on developing proper data handling and processing practices to comply with the latest developments in U.S. state data privacy laws. Mr. Allen is a member of the firm’s Technology Transactions, Cybersecurity, and Privacy Practice. Prior to joining Foley, he was a cybersecurity and data privacy associate at a Chicago law firm where he counseled small and large entities, including merchants, health systems, hospitals, accounting and consulting firms, and educational institutions on identifying, evaluating, and managing first- and third-party data privacy and security risks. Mr. Allen also assisted in the analysis of compliance responsibilities under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Family Educational Rights and Privacy Act (FERPA), the Gramm-Leach-Bliley Act (GLBA), and related state, federal, and international cybersecurity laws and regulations.
Mr. Allen is a corporate transactional attorney who concentrates his practice on M&A transactions, private placement transactions (both as issuer’s counsel and as counsel to venture capital firms, family offices, and angel investors), corporate and LLC governance and reorganizations, joint venture transactions, and complex commercial transactions in the areas of software licensing, industrial equipment sales, and significant supply, reseller, and distribution agreements.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Tuesday, February 17, 2026
- schedule
1:00 PM E.T.
I. Limitation of liability
A. Carveout: confidential information; breach of data security obligations; intellectual property; indemnification; restrictive covenants; payment obligations
B. Bad conduct: willful misconduct; gross negligence; violation of law
C. Variations in M&A agreements: diminution in value; damages based on a multiple; fraud; materiality scrapes
II. Best practices
A. Commercial agreements
B. M&A agreements
C. Damages awarded in third-party claims
D. "Special damage" caps
III. Practitioner takeaways
The panel will discuss these and other key issues:
- How can parties quantify and exercise control over potential liabilities that have been excluded from a limitation of liability provision?
- What are "bad conduct" carveouts in indemnification and limitation of liability?
- What are the risks of carveout language being over-expansive and defeating liability protection?
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