Updating Reps, Warranties and Indemnification Provisions in Software and Cloud Computing Contracts


CLE Credits earned: 2 GENERAL (or 2 LAW & LEGAL for WA state)

Every software or cloud computing agreement contains at least a nod to representations, warranties and indemnification provisions. All too frequently, however, these provisions provide little or no real protection and almost always fail to address the latest risks presented by these engagements. Vendors frequently seek broad disclaimers of warranties and offer little or no indemnification protection. Lawyers representing technology purchasers must understand the risks presented and be able to negotiate these provisions to ensure their clients’ rights are adequately protected. In this discussion, we will present real-world, nots-and-bolts approaches to negotiating these provisions and dramatically improving overall protection in software licenses and cloud engagements. These techniques are based on many years of experience in literally hundreds of transactions with every type and size of vendor.

Key topics to be discussed:

•   The importance of planning your approach to the deal
•   Alarming trends in technology contracting
•   Understanding and identifying appropriate warranties
•   Drafting effective indemnification clauses

Date / Time: July 19, 2019

•   12:00 pm – 2:00 pm Eastern
•   11:00 am – 1:00 pm Central
•   10:00 am – 12:00 pm Mountain
•   9:00 am – 11:00 am Pacific

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•   Live Video Broadcast/Re-Broadcast: Watch Program “live” in real-time, must sign-in and watch program on date and time set above. May ask questions during presentation via chat box. Qualifies for “live” CLE credit.
•   On-Demand Video: Access CLE 24/7 via on-demand library and watch program anytime. Qualifies for self-study CLE credit. On-demand versions are made available 7 business days after the original recording date and are view-able for up to one year.

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Original Broadcast Date: July 19, 2019

Michael Overly, Esq. is a partner in Foley & Lardner’s Information Technology & Outsourcing Group and Privacy, Security and Information Management Groups. He is one of the few practicing lawyers who has satisfied the rigorous requirements necessary to obtain the Certified Information System Auditor (CISA), Certified Information Systems Security Professional (CISSP) , Information Systems Security Management Professional (ISSMP), Certified in Risk and Information Systems Controls (CRISC), Certified Outsourcing Professional (COP), and Certified Information Privacy Professional (CIPP) certifications. He writes and speaks frequently regarding negotiating and drafting technology transactions and the legal issues of technology in the workplace, e-mail, and electronic evidence. He has written numerous articles and books on these subjects and is a frequent commentator in the national press (e.g., the New York Times, Chicago Tribune, Los Angeles Times, Wall Street Journal, ABCNEWS.com, CNN, and MSNBC) and has testified before the U.S. Congress regarding online issues. Among others, he is the author several books, including: Big Data: A Business and Legal Guide (CRC Press 2014), A Guide to IT Contracting: Checklists, Tools and Techniques (CRC Press 2012), e-policy: How to Develop Computer, E-mail, and Internet Guidelines to Protect Your Company and Its Assets (AMACOM 1998), Overly on Electronic Evidence (West Publishing 2002), The Open Source Handbook (Pike & Fischer 2003), Document Retention in The Electronic Workplace (Pike & Fischer 2001), and Licensing Ling-byLine (Aspatore Press 2004); Big Data: A Business and Legal Guide (CRC Press 2014; Practice Guide: Drafting and Negotiating Effective Cloud Computing Agreements, LexisNexis (2015).

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Section I. The importance of planning your approach to the deal

Section II. Alarming trends in technology contracting

Section III. Understanding and identifying appropriate warranties
a) Avoiding Stock warranties
b) Warranty duration
c) Warranty scope
d) Types of warranties
e) Example vendor warranties and potential responses
f) Customer warranties

Section IV. Drafting effective indemnification clauses
a) What is an indemnity?
b) Scope of indemnity
c) Who is protected
d) Types of indemnities
e) Remedies
f) Example vendor indemnities and potential responses

Section V. Bringing it all together