Limitation of Liability Carveouts: Confidentiality, Data Security Breaches, IP, and Indemnification

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

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Conducted on Tuesday, July 12, 2022

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Course Materials

This CLE course will examine limitation of liability provisions and how to properly exclude certain types of damages from such disclaimers and/or caps. The panel will discuss typical carveouts on 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 also typically contain broad disclaimers and caps on damages, as well as exclusions to other types of damages.

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" carve-outs in indemnification and other limitation of liability provisions that when not properly drafted can defeat limited liability provisions. Successor liability can create risks that will need to be mitigated in contracts of sales of business, as well as other types of agreements.

Listen as our expert panel discusses the types of carve-outs that are typical in limited liability provisions, when such carve-outs should be employed, and what risks can (and cannot) be mitigated.

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Outline

  1. Limitation of liability
    1. Carve-outs
      1. Confidential information
      2. Breach of data security obligations
      3. Intellectual property
      4. Indemnification
    2. Bad conduct
  2. Best practices

Benefits

The panel will discuss these and other key issues:

  • What are best practices for identifying and documenting assumption of liabilities?
  • What are "bad conduct" carve-outs in indemnification and limitation of liability?
  • What are the risks of carve-out language being over-expansive and defeating liability protection?

Faculty

Kuemmerlein, Marc
Marc L. Kuemmerlein
Of Counsel
Kutak Rock

For more than 30 years, Mr. Kuemmerlein has served as legal executive and general counsel to companies in diverse...  |  Read More

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