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How to Negotiate a Data Safety Warranty in an M&A Transaction

By August 18, 2024August 20th, 2024No Comments

The pensee that loss of life, taxes and ransomware moves are the three definiteties of life isn’t only applicable to business. With data security breaches expected to impact a business every 2 seconds and cost businesses $265 billion in the first year, and that’s just for 2031, it’s no surprise that more distributors tend to be supplying their customers with a new type of warranty called cybersecurity warranties. These warranties are designed to reduce the financial risks connected with cyberattacks and eliminate the risk by shifting liability to the company that provides them. They’re usually a supplement to cybersecurity insurance and assist in filling the gaps that insurance may not be able to cover a reduction.

Warranty can be a powerful instrument for transferring financial risk, but they aren’t an alternative to a complete risk management system. While a cybersecurity warranty can be used as a replacement for cyberinsurance, they should be used in conjunction to decrease the chance of a breach.

When negotiating a warranty agreement in an M&A transaction, it is important to know and limit the liabilities which are not covered by the warrant. For example, regulatory offences actions typically have lengthy limitations periods that could exclude indemnification from a warranty.

Manufacturers should also make sure that their warranty covers how they intend for their products to be used. Machine learning tools that study walking patterns could be warrantied to assist users identify the correct shoes or diagnose chronic pain. If the device is used to monitor or intercept communications, then the warranty disclaimer can keep manufacturers from accepting any responsibility.

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