Drafting Enforceable Limitation of Liability Clauses in Business Contracts

Limiting Potential Damages and Avoiding Enforceability Pitfalls With Carefully Negotiated Provisions

Recording of a 90-minute CLE webinar with Q&A


Conducted on Thursday, March 30, 2017

Recorded event now available

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Program Materials

This CLE webinar will provide guidance to business counsel for drafting and negotiating enforceable limitation of liability clauses in business contracts. The panel will discuss key considerations when crafting the provisions, enforceability challenges, and the interplay of limitation of liability clauses with indemnification provisions.

Description

The limitation of liability clause can be an effective tool for limiting a company’s direct, indirect, consequential, special and incidental damages in the event of a breach of contract claim. Limitation of liability provisions generally cap damages at either an amount agreed upon by the parties, the contract amount, or the parties’ insurance coverage limits. The clauses may also specifically exclude certain types of damages.

Courts routinely scrutinize limitation of liability provisions to ensure that they are not ambiguous, unconscionable, unfairly bargained for, or in violation of a state statute or public policy. Limitation of liability clauses that were not clearly drafted or fairly negotiated may be held unenforceable.

Listen as our authoritative panel explains best practices for drafting and negotiating limitation of liability provisions in business agreements. The panel will provide strategies for avoiding common negotiation pitfalls, anticipating and overcoming enforcement hurdles, and reconciling limitation of liability provisions with indemnification clauses.

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Outline

  1. Drafting considerations and best practices for limitation of liability clauses
  2. Enforceability challenges with limitation of liability clauses
  3. Interplay of limitation of liability clauses with indemnification provisions

Benefits

The panel will review these and other key issues:

  • What considerations should business counsel take into account when drafting and negotiating limitation of liability provisions in contracts?
  • What enforceability challenges do parties commonly face when seeking to invoke a limitation of liability clause?
  • What is the interplay between limitation of liability clauses and indemnification provisions in business agreements?

Faculty

Gorenberg, Kenneth
Kenneth M. Gorenberg

Partner
Barnes & Thornburg

Mr. Gorenberg is a member of the firm’s Litigation Department and its Policyholder Insurance Recovery and...  |  Read More

Richman, Steven
Steven M. Richman

Member
Clark Hill

Mr. Richman practices in the areas of domestic and international commercial law, including distributorships,...  |  Read More

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