From the category archives:

Procurement Dept

Three reasons to educate the other side’s negotiators what to ask for in the contract

August 25, 2010

“If the other side doesn’t know what to ask for, it’s not my job to educate them.” That’s one reason a contract drafter might not want to use a PRECUT baseline contract form: the other side would be led to the Curator’s Notes for that form, which would give them a good idea of what [...]

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PRECUT NDA: A free, balanced, multi-purpose, nondisclosure agreement

August 16, 2010

[UPDATED 2010-09-02] PRECUT ™ NDA Downloads NDA form (fillable PDF) Curator’s Notes (PDF) Word document containing all PRECUT NDA clauses, plus numerous other NDA provisions that can be copied to a custom addendum (RTF) Confidentiality provisions adddendum — just the confidentiality provisions from the PRECUT NDA, for possible use with other agreements Commentary The PRECUT ™ [...]

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How to sign a company contract without incurring personal liability

June 3, 2010

If you’re an employee of a company, and you sign a company contract as just “John Doe,” you might end up being held personally liable for the company’s obligations. (If you’re the owner of the company as a sole proprietor, or the general partner of a partnership, you probably will be personally liable in any [...]

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Note-taking in meetings and phone calls: Three easy habits your lawyer will love you for

May 27, 2010

Chances are that at some point in your career, a lawyer — yours, or someone else’s — will want to review notes you took at a meeting or during a phone conversation. So thinking ahead to that possibility, whenever you take notes, you should routinely do as many of the fol­low­ing things as you can remember, especially [...]

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How to sell [software] to large companies

May 24, 2010

Smart Bear guest blogger Steve Hanov has posted a long essay, “Bending over: How to sell to large companies,” with advice for small software vendors. The essay is getting a lot of positive attention on Hacker News; the comments there from entrepreneurs are worth reading as well.

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Drafting contracts after Twombly and Iqbal: Provide for extrajudicial discovery?

May 20, 2010

When drafting a contract, think about whether to include provisions re­qui­ring the other side, in certain circumstances, to provide copies of rel­e­vant documents and/or to make its employees available for in­ter­view. Under the Supreme Court’s recent Twombly and Iqbal decisions, this kind of contract provision might make the difference between your client being able to [...]

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G-PP-AA: Five questions to ask at every business meeting you ever attend

May 17, 2010

[Updated 2010-08-19] It’s been my impression that many business-contract disputes could be avoided if the participants would just talk with each other regularly about five things. This makes me think that in almost any business meeting concerning a project or re­la­tion­ship, it’s a good idea to ask about those five things, with the acronym G-PP-AA: [...]

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A better way to handle a breach of contract (at least in some cases)

April 26, 2010

Contracts often contain generic statements that, in case of a breach, the breaching party will cure the breach within, say, 30 days. Some­times, however, it helps to spell out exactly what the other side must do to cure the breach. That way, the other side’s lawyers will have less wiggle room to come up with ‘creative’ [...]

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Limitations of liability: Try varying them with time, and/or with circumstances

April 19, 2010

Last week I posted a call to negotiate limitations of liability, in complex contracts, on a risk-by-risk basis, and not as one-size-fits all. Here’s another possibility to consider: Exclusions of consequential damages and damage-cap amounts don’t necessarily have to be carved in stone for all time. The parties could easily agree to vary them, either [...]

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Negotiating contractual limitations of liability: Do it risk by risk, not one-size-fits-all

April 16, 2010

A common complaint: Too much time spent negotiating liability limitations The root of the complaint:  Boilerplate. Systematically list risks of specific concern, then address liability limits for each A common complaint: Too much time spent negotiating liability limitations Limitation-of-liability provisions usually rank at or near the top of the IACCM’s annual surveys of the most-frequently-negotiated [...]

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When you can’t just say no in a contract: Three creative compromises

April 13, 2010

Companies often don’t have the bargaining power to get their way in contract negotiations. When that’s the case, they have to think of other ways to help protect their business interests. Imagine, for example, that a customer is negotiating a master purchasing contract with a vendor. The customer would love to flatly prohibit the vendor [...]

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