Lost Profits: Direct or Indirect Damages?

In 2014, the New York Court of Appeals, in Biotronik A.G. v. Conor Medsystems Ireland, Ltd., held that the lost profits claimed by a party were “general damages”, and were recoverable. They were recoverable despite the limitation of liability provision in the contract, which stated that neither party would be liable for “any indirect, special, consequential, incidental or punitive damage with respect to any claim arising out of [the] agreement” for any reason, including a party’s performance or breach of the agreement.

How to Negotiate Your IT/Tech NDA Faster (or, Living with a Suboptimal NDA)

Whether based on a party’s bad experience in a previous situation, defensive or offensive tendencies, or need to avoid deviations from company policies, otherwise common NDA terms can lead to uncommonly protracted negotiations. For a vendor looking to sell to a new customer, lengthy or difficult NDA negotiations can cause the potential customer to view the vendor as being difficult to deal with, or, worse, to drop the vendor from consideration entirely. For a customer wanting to urgently find a vendor to provide services to address a data breach, time to negotiate an NDA is not a luxury.