Risk Allocation in Commercial Contracts: Indemnity, Reps and Warranties, Termination, Damages Provisions

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.