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LATEST FROM THE IACCM NETWORK

BID BOND (TENDER BOND) BEST PRACTICE

Bid Bond (Tender Bond) submission is one of the main requirements for most types of tenders, to assure the real interest of the bidders to participate on that bid. We seek to get the best practice and to share your experience for the below aspects related to the Bid Bond: - Amount of the Bid Bond (%)(For Turnkey projects also, for frame , unit rate scope ) - Time of verifying the Bid Bond, (With technical opening or with Commercial opening or when?) - How do you think about fixing a certain exact amount of BB for each Project; regardless of the bidders offers value. - Regarding the time of releasing the Bid Bonds for the winning bidders(After signing LOI/LOA/ Contract, after getting the Performance Bond, after expiry of the Contract, or When?) - Best practice for BB validity(6 month, 1 year, or open renewable).

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OSS embedded within a commercial product

Please can anyone give me advice on how best to approach drafting a Software Licensing Agreement where the software has embedded Open Source Software. Particularly clarifying if my commercial product (with the embedded OSS)is considered a derivative of the OSS. Thank you.

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Cloud Contracting

I am interested in perspectives on various issues and contracting approaches for the use of cloud services, particularly from niche providers who may, in-turn, actually have their applications hosted on a third-party provider like Microsoft, Amazon, Rackspace, etc. I'm looking for perspectives on the entire gambit of issues, including - protection measures used for data at-rest and in-transit; protection of video and images; right of return of all data upon request of customer; obligations of the supplier to delete data when no longer needed (either during the course of performing the services or upon termination of the services and return of the data to the customer); background checks on employees who may have access to the data; monitoring of access by all supplier personnel; business terms like fluctuations in the use of the service (bandwidth, storage space, processing capabilities); right to move the data to different locations in the same country; right to move data to a different country for processing and/or storage; obligations to notify in the case of suspected or actual breach/compromise of data.

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Limitation of Liability

I was recently having coffee with four other individuals involved in contracting for IT Professional Services. During the course of conversation one of the participants suggested that rather than having unlimited direct liability for certain aspects (breach of confidentiality, indemnification of third-party claims, gross negligence and willful misconduct) that EVERYTHING be limited to the extent permitted by law -- but then increase the limitation to a number that would cover the majority of potential issues ($5,000,000 USD was a suggestion). When questioned, the participant stated that when it comes to contracting parties where one has "deep pockets" and the other does not, having the unlimited liability may sound nice on paper, but in reality it is a one-way protection that benefits the party that does not have deep pockets. Effectively, if the party that does not have deep pocket had a very large claim against them, they could declare bankruptcy and later reorganize as a different business concern - while the deep pocket party with the same claim would be obligated to pay. Their perspective was in essence: No consequential damages; limit all direct damages to a pre-defined/agreed amount ($5,000,000 or amount that will cover 90%-95% of historic claims in the industry); and include indemnification from third-party claims in the cap. Thoughts?

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Does a Contract/Commercial Manager require a Law Degree?

Hello All, I have been working as a Commercial Manager for 6.5 years, responsible preparation and negotiation commercial contracts for high value complex transactions(FIDIC etc). I have a bachelors degree in electrical/electronic engineering and a masters degree in power systems engineering. My concern arose when I looked for job opportunities for a commercial manager outside my organisation, almost all job posting required a law degree. I am unsure whether or not I should purse a law degree to give myself the best change for future job opportunities. Your thought/ideas are well appreciated.

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Visual contracts to support collaborative contracting

During the IACCM Australasia Conference in Sydney Australia back in 2016, I was introduced to a new mindset in commercial contracts, namely, 'collaborative contracting'. And ever since then, I have been an advocate for moving away from using overly complicated and technical contract documents that are full of confusing 'legalese' that could only be interpreted and understood by another lawyer. During the Conference, we were introduced to a new innovative 'comic contract' developed by attorney Robert de Rooy in South Africa. His new comic employment contract was produced in 2016 and was implemented for use with fruit pickers on farms in the Western Cape province. The resulting improvement to employer/employee relationships and to employee productivity was astounding. Although, at first consideration this approach is a a hard pill to swallow for the legally trained mind, there are immediately obvious benefits to the pictorial approach. Workers who may have learning difficulties or poor English skills, those people who learn better through visual communication, as well as young workers, could benefit from this novel approach. And other workplace documents that are distributed to an entire workforce, such as workplace policies, if written in such a visual format, could keep levels of engagement higher by capturing the interest of the reader long enough so they might actually read them in their entirety. The benefits of using simpler, more direct drafting are obviously beneficial. The use of quasi-Latin terms or words like 'wherefore', 'henceforth' and 'herewith' can be avoided, unless you are directly dealing with a judge or want to deliberately intimidate or scare the other party. Don't get me wrong, there are certain complex contracts which require a certain amount of 'legalese' and should be drafted by a competent lawyer. But contracts like employment contracts and simple service contracts should not be intimidating and should be in a format which both parties can easily understand without conferring with a lawyer. In August 2018, global engineering and infrastructure advisory company, Aurecon started using visual employment contracts, eliminating more than 4 000 words from their standard employment contract template to create a succinct and meaningful visual contract that uses illustrations to complement the text. The contracts were developed in partnership with Law Professor Camilla Andersen from the University of Western Australia. https://www.aurecongroup.com/about/latest-news/2018/august/aurecon-rsa-visual-employment-contract A contract is formed when parties agree on terms they intend to be legally binding. Agreement is the basis of any contract. Parties must have the capacity to contract, which means that they must have a clear understanding of the contents of the contract. The object of the contract must be legal and possible, it must be in writing, signed by the parties and must be observed. Lastly, for the contract to be binding, a court must be able to interpret it. Comic contracts can meet all these requirements. And as proponent of collaborative contracting, I feel this new form of contracting could result in a focus on building relationships between the parties. The examples of Robert de Rooy in South Africa, and of Aurecon in Australia, have motivated me to start working on a new visual construction contract which will combine comics, avatars and text balloons with simplified contract clause narrative. Anyone working in the international construction sector would certainly agree that there is a need to move away from unbalanced, hard to understand contracts which foster adversarial relationships between the parties. If anyone would like to contribute towards my endeavors, you are most welcome to send me individual commic scenes or avatars with the associated contract clause heading captioned underneath. Your name will be included in the forward of the contract proforma as a contributor. https://www.linkedin.com/pulse/visual-contracts-support-collaborative-contracting-jeff-b/

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ITC Subsupplier agreement template

I'm in need of a current (GDPR and "ITIL ready" subsupplier agreement) for a ICT solution we provide to the market. We wan't to engage with a few subsuppliers for "customization and Level 2/3 support (AD & AM) in the nordic market. We probably have all the pieces to build the required framework, but it would be great if we to take offset in a IACCM template - and this I can't find - all hints and help would be appreciated, thks in advance ! /Ole

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Non Relaince/ Disclaimers

Hi everyone, does anyone have a specimen clause for non reliance on advice/ reports provided by the company, or a disclaimer, that helps to limit liability? Thanks Serena

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Vienna convention on sales of good exclusion

Hi Everyone. Does any one know why we often exclude the United Nations Convention for the International sale of goods from the applicable law in the sales contracts? Thanks for your knowlegde sharing.

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Internship

Dear all, My name is Charles, I am 20 years old and I am currently in my 2nd year of bachelor's in business administration in Paris. I recently took an online course on the essential negotiations' skills. I am now looking for an opportunity to sharpen and develop these skills in a practical approach. I discovered the IACCM during one of the lectures. Since then, I took a closer look to the expertise of this association and found myself very attracted to the contract management and commercial management. I will be in Paris from end of May until the end of August 2019 and would like to know if there were any opportunities for me to improve my knowledge during an internship. If, anyone, is looking for an intern for an approximate duration of 2 months. You can contact me at derriencharles5@gmail.com Thank you for reading, Charles Derrien

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Obligation of Supplier to Prioritize Resources

I am looking for some guidance regarding a clause which is obligating the supplier to prioritize resources for the Purchaser. From the supplier side this could potentially be a commitment difficult to fulfill. Perhaps you have seen some drafting on this subject which softens such a commitment? I am thinking along the lines of "supplier to make best efforts...". Looking forward to your comments

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