commercial contract drafting and negotiation PDF
Preview commercial contract drafting and negotiation
CommerCial ContraCt Drafting anD negotiation: aDviCe for avoiDing HeaDaCHes 2011 CCCa annual ConferenCe Halifax, august 16, 2011 Table of ConTenTs Tab 1: PResenTaTIons Context & architecture in Contract Drafting Dr. stan benda Contract Drafting: Unenforceability & Uncertainty stuart english & Robert Cohen Contracting Issues - best Practices and avoiding Pitfalls Robert balcom Tab 2: aDDITIonal MaTeRIal Context & architecture in Contract Drafting Paper by Dr. stan benda Corporate Counsel bulletin board Press Release Tab 3: bIoGRaPHIes stuart english Robert b. Cohen Robert balcom Dr. stan benda +OVERVIEW CONTEXT Non-Legal Considerations ARCHTECTURE Devices Structure Elements Style CONTEXT Legal Considerations SPECIFICS Indemnifications Reps and Warrants Put it on the Web 16th Aug. 2011 Dr. Stan Benda / CBA Annual Halifax 2 16th Aug. 2011 Dr. Stan Benda / CBA Annual Halifax 3 + NON- LEGAL CONSIDERATIONS Personality Issues Risk Culture Types Negotiating Facets Cultural Issues (Government v University v Private) 16th Aug. 2011 Dr. Stan Benda / CBA Annual Halifax 4 +LEGAL CONSIDERATIONS Preservation of promise / Allocation of Risk Schools of Interpretation Readership – Five Audiences Separated in time and context Different agendas Speech Communities Values and Lexicon Fresh /Organic / Not –From – Concentrate Opposite of innocent? Opposite of dry? 16th Aug. 2011 Dr. Stan Benda / CBA Annual Halifax 5 16th Aug. 2011 Dr. Stan Benda / CBA Annual Halifax 6 +ARCHITECTURE Devices Term Sheet, MOU, Letter Agreement, Comfort Letter, Formal, Tender & RFP Formal Contract Recitals Elements Definitions, covenants, statements, reps & warranties, conditions Style Points Para headings, footers, sentence structure, fonts, line length & spacing, conspicuous definitions, justification, shall v will v must 16th Aug. 2011 Dr. Stan Benda / CBA Annual Halifax 7 +SPECIFICS Reps and Warrants Objective Definition(s) Types Qualifications Indemnifications Why – risk, control means Structure Scope Term Notifications Exclusions Subject Cap Threshold Consequence Web Use Paper Scope of work Execution Web – boilerplate, ADR 16th Aug. 2011 Dr. Stan Benda / CBA Annual Halifax 8 16th Aug. 2011 Dr. Stan Benda / CBA Annual Halifax 9 1 12/08/2011 1 Purpose of Contracts To create enforceable obligations that reflect what you intended slide | 2 2 Key Requirements ● Enforceability ● Certainty slide | 3 12/08/2011 2 Six Sources of Uncertainty ● Ambiguity g y ● Undue Generality ● Inconsistency ● Redundancy ● Conflicts ● Vagueness slide | 4 Interpretation Principles ● Goal of promoting parties’ reasonable expectations p g p p ● Intention of parties determined objectively (not subjectively; not determining actual intention; parole evidence rule) ● Plain meaning assumed to represent parties’ intentions (presumed to have intended what they said) slide | 5 12/08/2011 3 Interpretation Principles ● Where words bear 2 interpretations, the more reasonable p , one, that which produces a fair result, is preferred ● Interpretation that promotes, rather than defeats, purpose and objective should be chosen (context and purpose relevant) ● Literal meaning not applied if it produces absurd or unrealistic result slide | 6 unrealistic result Potential Causes of Ambiguity ● Modifiers ● Commas ● And/Or ● May Only slide | 7 12/08/2011 4 Modifiers Syntactic Ambiguity y g y ● Adjectives Before Noun Strings ● Exclusions In-Between ● Opening/Closing Modifiers ● Time for Performance slide | 8 Modifiers Adjectives Before Noun Strings j g The Software shall be fully compatible with all Apple smartphones, tablets and laptops. The Software shall be fully compatible with all smartphones, tablets and laptops that are Apple products. The Software shall be fully compatible with all Apple products, i l di t h t bl t d l t slide | 9 including smartphones, tablets and laptops. 12/08/2011 5 Modifiers Exclusions In-Between Developer licenses the Software for use on all WiFi-enabled computers, excluding tablets, netbooks and laptops. Developer licenses the Software for use on all WiFi-enabled computers, netbooks and laptops, excluding tablets. slide | 10 Modifiers Exclusions In-Between Insuranceco shall reimburse Service Provider for all costs incurred in providing the Services and payments to third parties. Insuranceco shall reimburse Service Provider for all costs incurred in providing the Services, excluding depreciation, overhead charges and other indirect costs, and payments to third parties. Insuranceco shall reimburse Service Provider for all payments to third slide | 11 p y parties and other costs incurred in providing the Services excluding depreciation, overhead charges and other indirect costs. Insuranceco shall reimburse Service Provider for all costs incurred in providing the Services excluding: (a) depreciation, overhead charges, and other indirect costs, and (b) payments to third parties. 12/08/2011 6 Modifiers Opening/Closing Modifiers p g g Insuranceco shall reimburse Service Provider for all costs incurred in providing the Services excluding overhead charges and payments to third parties not set out in the Cost Schedule and in excess of $50,000. Insuranceco shall reimburse Service Provider for all costs incurred in providing the Services excluding overhead charges, and t t thi d ti t t t i th C t S h d l d i slide | 12 payments to third parties, not set out in the Cost Schedule and in excess of $50,000. Insuranceco shall reimburse Service Provider for all costs incurred in providing the Services excluding: (a) overhead charges, and (b) payments to third parties not set out in the Cost Schedule and in excess of $50,000. Modifiers Opening/Closing Modifiers p g g Insuranceco shall reimburse Service Provider for all costs incurred in providing the Services excluding: a) overhead charges, and b) payments to third parties not set out in the Cost Schedule and in excess of $50,000. I h ll i b S i P id f ll t slide | 13 Insuranceco shall reimburse Service Provider for all costs incurred in providing the Services, excluding any costs not set out in the Cost Schedule and in excess of $50,000 that are: (a) overhead charges, or (b) payments to third parties. 12/08/2011 7 Modifiers Time for Performance If the Company disputes any amount set out in the Cost Reconciliation within 30 days Service Provider shall provide documentation supporting its calculation of the costs or a revised Cost Reconciliation. If the Company disputes any amount set out in the Cost Reconciliation within 30 days, Service Provider shall provide f slide | 14 documentation supporting its calculation of the costs or a revised Cost Reconciliation. If within 30 days of receipt of the Cost Reconciliation the Company disputes any amount set out therein, Service Provider shall promptly provide documentation supporting its calculation of the costs or a revised Cost Reconciliation. Modifiers Time for Performance Buyer shall pay the purchase price to Seller by wire transfer to an account designated by Seller no later than 5 business days after delivery of the goods. Buyer shall pay the purchase price to Seller, by wire transfer to an account designated by Seller, no later than 5 business days after delivery of the goods. slide | 15 days after delivery of the goods. Buyer shall pay the purchase price to Seller, no later than 5 business days after delivery of the goods, by wire transfer to an account designated by Seller.
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