Supply Chain Agreements: Consequential Damage Disclaimers, Indemnity, Force Majeure, Termination, Warranty Provisions

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

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Conducted on Wednesday, September 30, 2020

Recorded event now available

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Course Materials

This CLE course will discuss the interplay between several critical terms in supply chain agreements--namely indemnification, consequential damage disclaimers, force majeure, termination, and warranty provisions. Our panel will discuss practical guidance for structuring these terms and best practices as disputes arise during the current economic climate.

Description

Like all contracts, supply chain agreements devote considerable planning to address and allocate the risks of disruption and nonperformance. The potential for supply chain disruptions is vast, which has been underscored by the COVID-19 climate. Buyers and sellers must anticipate and implement protections in the wake of global disruptions from tariffs, trade wars, and the pandemic.

A high priority consideration for practitioners is the interplay between various terms intended to mitigate/transfer risk in the transaction through warranty terms, damages disclaimers, and limitations on liability. In addition, counsel must carefully craft indemnity provisions to fend off claims from third parties.

Other critical terms include termination rights and force majeure clauses, which should take into account the realities for the particular supply and distribution channels. Key considerations include sole-sourced exclusive supply agreements, the geographic location of suppliers, time to ramp-up an alternate supplier, and potential events outside of the parties’ control.

Listen as our expert panel provides critical insight on how to avoid pitfalls in crafting and implementing these essential terms for clients. The panel of attorneys brings a wealth of experience in the structuring and negotiation of supply agreements.

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Outline

  1. Critical commercial terms in supply chain agreements
  2. Risk mitigation provisions
    1. Consequential damages disclaimers
    2. Indemnification
    3. Force majeure
    4. Termination
    5. Warranties
  3. Interplay between terms
  4. Practical considerations and lessons from the pandemic

Benefits

The panel will review these and other relevant issues:

  • How can consequential damage disclaimers impact other terms of the supply chain agreement?
  • How does whether the client is buying or selling change the analysis of carveouts to consequential damage disclaimers?
  • What is the role of the indemnification provision, and how does it differ from the warranty?
  • How can transaction counsel maximize the value of warranty provisions for buyers and sellers?
  • What are the different perspectives from the buy- and sell-side to approaching negotiations and key language to include in the force majeure provision?
  • What are the special considerations in the current COVID-19 and economic climate to evaluate supply chain agreements?

Faculty

Miller, Vanessa
Vanessa L. Miller
Partner
Foley & Lardner

Ms. Miller’s practice focuses on general manufacturing breach of contract and warranty disputes, automotive...  |  Read More

Soble, Jeffrey
Jeffrey A. (Jeff) Soble
Partner
Foley & Lardner

Mr. Soble’s practice focuses on product liability, commercial disputes between businesses, class action defense,...  |  Read More

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