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

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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, September 6, 2022

Recorded event now available

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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.


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.



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


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?


Cohen, Mark
Mark Cohen, J.D., LL.M.

Cohens Law

Mr. Cohen has 36 years of experience as a lawyer. His practice focuses on drafting and reviewing legal documents,...  |  Read More

Ellis, Nicholas
Nicholas J. Ellis

Foley & Lardner

Mr. Ellis’ practice focuses on manufacturing and supply chain disputes, UCC, warranty claims, contract law, and...  |  Read More

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