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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, September 24, 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 explore some of the most challenging clauses in commercial contracts: indemnification, representation and warranties, termination, and damages provisions. The panel will discuss critical elements of each, including triggers, scope, exclusions, cost allocation, enforceability, and safe-harbor strategies for avoiding common pitfalls.

Faculty

Cecilia Y. Oh
Partner
Hunton Andrews Kurth LLP

Ms. Oh has extensive experience in negotiating a wide range of technology transactions, including those involving payment systems, information technology and business process outsourcing, cloud-based services, ERP implementations, e-commerce and general licensing. In particular, she focuses on technology agreements in the financial services and retail industries, including core bank processing, merchant processing, card tokenization services, encryption solutions, payment gateway services, card incentive agreements, and emerging payment solutions, such as mobile wallets. Her clients include some of the largest US financial institutions and retailers.

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Andrew L. Field
Attorney
Parent: Taft Stettinius & Hollister Llp

Mr. Field helps businesses proactively identify and mitigate their legal risks, particularly in connection with mergers and acquisitions and other high-priority transactions.  As outside general counsel, he regularly advises on issues from contract negotiations to regulatory compliance. Mr. Field collaborates closely to understand clients’ unique needs and seize opportunities as they arise. He manages the details of corporate governance and transaction action items so that client decision makers can focus on their core business. Mr. Field earned his J.D., magna cum laude and Order of the Coif, from Georgetown University Law Center and his B.S., cum laude, in economics and finance (with a minor in mathematics) from Centre College.     

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Description

Most commercial contracts--sales agreements, leases, lending agreements, software licenses, construction contracts, and M&A agreements--include indemnification, representation and warranties, termination, and damages provisions. These clauses allow parties to allocate risk and reduce liability exposure. Such terms must clearly outline risks, scope, and exclusions. But these ubiquitous contract provisions often generate litigation because they are unartfully drafted or practically function in unexpected ways.

But the potential pitfalls go well beyond using vague or inaccurate wording that may jeopardize an entire agreement, lay the foundation for an unwanted result, or create difficult negotiations when the relationship between the parties has soured. When negotiating and drafting these types of clauses, counsel for contracting parties must anticipate and address an array of additional potential landmines, including possible statutory limitations, enforcement and procedural hurdles, and the unknown interplay between risk allocation provisions.

Listen as our authoritative panel of seasoned practitioners provides in-depth drafting recommendations and practical guidance for indemnification, representation and warranties, termination, and damages provisions. The panel will focus on strategies for avoiding common pitfalls and provide insights to help reduce the likelihood of disputes.

Outline

  1. Elements of risk allocation
  2. High priority provisions
    • Representations and warranties
    • Indemnification
    • Limitation of liability
    • Termination
    • Damages
  3. Pitfall avoidance
    • Exculpatory clauses
    • Enforcement
    • Interplay between risk allocation provisions
  4. Practice tips

Benefits

The panel will review these and other crucial issues:

  • How do representations and warranties define the scope and consequences of a contractual breach?
  • What are the parameters of statutory and common law indemnity and how can parties alter these obligations contractually?
  • How can business counsel best mitigate risk when drafting and negotiating indemnification and limitation of liability provisions in commercial contracts?
  • How have the courts' varying interpretations of these provisions impacted parties' ability to shift liability in commercial contracts?
  • What enforceability challenges do parties commonly face?