My guess is that this is the equivalent of your Limitations of Liability clause. That is, you state the maximum liability that your firm/company will accept with any exclusions/carve outs.
• -True Balance Coaching
Here is what the Canadian govt asks for in its major procurements. This could be offered with a limitation inserted so that the risk is reasonable for both parties.
The Contractor is liable for any damage caused by the Contractor, its employees, subcontractors, or agents to Canada or any third party. Canada is liable for any damage caused by Canada, its employees or agents to the Contractor or any third party. The Parties agree that no limitation of liability or indemnity provision applies to the Contract unless it is specifically incorporated in full text in the Articles of Agreement. Damage includes any injury to persons (including injury resulting in death) or loss of or damage to property (including real property) caused as a result of or during the performance of the Contract.
• Rolls-Royce North America
These can be complex provisions that are impacted by a variety of factors, such as which law governs the agreement(s), whether you are offering goods or services, whether your customer is a private or a public entity, etc. Your question also leaves open whether the client is seeking a statement of your limitation of liability (including exclusion of certain types of damages), or an affirmative statement of acceptance of risk and liability, potentially including a promise to indemnify the client for third party liability resulting from your acts, errors or omissions.
How you respond to this will depend on how these and other questions are answered, and how much risk you want to assume in pursing this business opportunity. I would strongly encourage you to seek legal advice in preparing a response to this request to fully understand the relevant implications.
We are a small non-profit organization and we depend on law student interns during the summer and fall. We currently have a structure in place where we will have the intern review contracts and work with the relevant department to negotiate any language. However, the overall approval would come from our In-House Counsel. She would sign off on our internal approval form. I hope this helps!
• SAP (UK) Ltd
I recruited a law graduate last year to review over 1000 legacy contracts, record key terms in a master spreadsheet and identify any requiring renewal/ amendment etc. He refers to a draft template created by Legal to prepare the addendum for each contract (he customises each document to reflect the changes required). The graduate also liaises with regional legal teams to push through these contract amendments.
I have recently decided to shift the role to be more of a paralegal function and he will shortly begin negotiating changes to low-risk agreements such as NDAs, test account agreements etc.
He has also been instrumental in reviewing supplier agreements to ensure these meet the minimum standard of industry codes of conduct.
• Babcock International Group
This was how I started with my current company. I began with reviewing documents and flowing comments and proposed changes back through the contract owner to inform their negotiations/approvals processes. Occasionally I would be invited to shadow the owner during reviews or negotiations and my role grew organically from there in terms of the level of independent working.
I would say that you need to realistically consider your function. Whilst legal graduates will be able to offer expertise in terms of appropriate terminology and possibly some of the boiler plate matters they will need support on company/industry specific governance, common practice and standards. This can be achieved through clear lines of reporting, documented policies and processes. If your department is not in a position to provide that you may find their value is limited and that they may choose to move on quickly - graduates will inevitably seek roles with opportunities for development and advancement.
This is an interesting question; we will circulate to the public sector community of interest and ask for input.
USA Department of Homeland Security (DHS) and the Scottish Government shared their experiences with IACCM:
DHS uses wiki as their social media vehicle. It is only used for pre-award activities and not post award contract communications. Some specifics:
• The wiki page will contain the entire history of an acquisition prior to award.
• Vendors can post questions or concerns on the wiki page.
• All communications for the acquisition will use the page but the government issues written communications as a follow-up as well.
• The page is centrally controlled by the acquisition program manager.
• Feedback from the vendor community is very positive.
• It is optional for use - not mandatory; currently being piloted.
• Platform was built by GSA for GWAC vehicles.
• DHS does not use linked in, twitter or Facebook.
DHS also blogs on their own IT platform (the DHS connect page) but this is at a much higher level - more for high level strategy and organization direction for their mission; not for specific acquisitions.
Response from the Scottish Government:
We use Twitter (@scotprocurement) to put out news, as well as our regular newsfeed and my monthly e-bulletin on the Scottish Government website www.scotland.gov.uk/Topics/Government/Procurement
The e-bulletin goes to just over 8000 subscribers, and we have just over 900 followers on Twitter, being regularly retweeted by linked organisations like the Supplier Development Programme. Feedback's pretty rare - the tweets tend to be announcements conveying information rather than seeking input, although we did use social media to encourage contributions to the consultation exercise on the Procurement Reform Bill. We don't know, though, how many of the consultation responses were as a result of the tweets. Within the Scottish Government, we use Yammer as a social media forum, although we've not yet developed a procurement section on that.
Joe Auer provides a brief example - see www.dobetterdeals.com/computerworld/cw.01_03_26.html
The elements needed in the clause clearly depend on what it is you are transitioning and to where. For example, is this a matter of transferring skills (eg training needed), or processes (which may introduce IP issues) or systems and software licenses (maybe involving third parties). There are also questions of whether that transition is free of charge or may involve payment of certain fees or charges.
In outsourcing, transition may involve transfers of personnel and thereby run into regulations such as TUPE - an issue raised in a previous Forum posting - see www.iaccm.com/resources/
I would recommend you focus on building your list of items to be considered before you spend much time on seeking model clauses. There are various books that will assist with checklists, especially if this is an outsourcing arrangement (eg Scott, or Cullen and Willcocks).
When drafting and negotiating the contract with your customer, you need to check all the related clauses careflly to avoid any contradiction; and here is normally a clause called Priority to define in case of contradiction which one shall take priority.
But if contradiction is found only after contract signing, and both parites disputes on the priority of the clauses, the things will be more complicated. If the dispute has to be solved by arbitrition or court, there will be cost, and the result is subject to the applicable law. The best way out is to negotiate with your customer and try best to achieve agreement.
An Order of Precedence clause in the contract will usually describe the hierarchy of the various sections of the contract e.g. the Ts & Cs, the Technical Specification, the works Programme, any other documents incorporated by reference. Conflicting clauses in an umbrella agreement may be stated to be subordinate to a purchase order raised against it, so the PO can vary individual terms. It would be rare, and indicative of careless drafting, if two clauses within the same set of Ts & Cs were in conflict; however if this did occur the default position would usually be that the later numbered clause prevails - there would need to be overwhelming evidence that this would be manifestly absurd if the opposite were to apply.
• Karan Builders,Pune,India
I am unaware of Virginia Contract interpretation.Notwithstanding this fact, Ideally,a clarification on contradictory contract provision needs to be sought by the bidder with the Employer through a pre-bid query to remove ambiguity and bring clarity through review/amendment at pre-bid stage itself.In case of overlook,the issue can be got clarified through an amendment to contract before award/signing of contract.Any further ignorance, post award of contract, will have consequential cost to the benefit of either party to the contract.
In my understanding, the DP liability is entirely to the DC - which is logical, since the DP might not have any physical presence in the UK. I find the following guide very useful http://ico.org.uk/for_organisations/data_protection/~/media/documents/library/Data_Protection/Detailed_specialist_guides/outsourcing_guide_for_smes.ashx
Jim, the answer depends to some extent on how you structure your contracts. In many cases, organizations have some form of Master Agreement which is itself signed (with a real signature) and then sets out the rules for subsequent documents or contracts, which reference that Master Agreement. Often, this will eliminate the need for any further signatures, or can designate whatever other standard you wish.
Even if you are typically needing to work on customer agreements, establishing those same principles may of course be possible.
• Exigent Group
I typically use the sign feature within Adobe (powered by EchoSign) and the signature is either an electronically scribbled signature or one that I have typed in and changed the font for - neither one has been rejected so far by a counter-party.
It is difficult to give a precise answer without knowing the context / specific nature of the agreement being considered, but I agree with your observations. Consortium and Teaming agreements are certainly used in the UK and would be examples.
• Systech International
I think your colleague is mistaken as the law of England and Wales allows all of the above.
• Altran Technologies
Thank you Russell, exactly what we thought....have a good day!
I concur with Russell. I have direct experience in the UK of a co-contract involving 6 industry parties and 1 government department in a 7-way co-contract involving sharing of technology research information.
Normally the Employer would not have to justify the claim for LDs in terms of what the Employers actual losses are as a result of delay that the contractor is solely resposnible for. An LD clause would normally state that " the agreed level of LDs are a pre-agreed level of damages for delay by contractor", or similar wording to that effect. This avoids long drawn out discussions on the matter of what the actual losses are. Further, LDs should not be seen as punitive.
• Karan Builders,Pune,India
Many thanks Brian for the prompt response.I agree,LD should not be seen as punitive but what remedy is available to contractor if LD is levied despite the reality that it was employer's default that resulted in delay and there were pacing delays suffered by contractor as a result .Shouldn't the contractor be entitled to treat this as dispute and claim compensation/damages under the dispute resolution mechanism available under the contract?
You should be able to claim additional costs associated with the employer's delay to the extent that they are costs that you would not have incurred if the Employer was not delaying. You should also claim additional time, as a result of the Employer's delay. Use of the dispute resolution clause is also possible if you cannot agree to the above.