Hi Bruce - your post and the efforts of Tim, Paula, Christine and Andrew deserve more than zero responses, so here goes.
I do like how the paper encourages us to take a different mindset to the usual "here are our standard contract terms". It's also great that it helps us think about what are the crucial measures / outcomes that we need to think about - like uptime and the remedies. It's great to have some of these issues and risks highlighted so we can include better milestones and measures of success.
As a practitioner, and I've said it before in the forum, I do worry that there's some real thinking missing when I see some of these about whole of like costs involved with data transfer at the end of the contract. There's a lot of great programs that say they can repurpose and reformat the data, but I've found that there's still a lot of cost associated with that, and in the original approach to market, I've seen few demonstrate any real cost in their procurement plans. We can't expect the IACCM team to do it all though !
• Devant Limited
Hi, I've recently been negotiating on the Supplier side and have found that customer's want to pay a low price, benefit from the flexibility of SaaS pricing but then want to negotiate hard on every single detail! A particular challenge has been the demand from Customers to put every new release / update (however small) through extensive UAT. This clearly challenges the agile & flexible nature of SaaS and the one-to-all model. A number of SaaS suppliers are also relatively new and growing businesses - my experience is that many large corporates want to take advantage of this.
Thanks for preparing this paper as it articulates the challenges and benefits of 'as-a-service' well.
Hi Mary Jo - great question. We've tried to take a lot out of the workload by investing up front in standard templates as much as possible. If you're only then putting in place objectives and milestones and special conditions to deal with unique risks whilst keeping the rest as identical as possible, we found that we've saved a lot of time and effort out of the process. Our former solicitors / lawyers were a little bit upset though !
Where possible, we've also tried to align legal manager to a procurement category. That helps balance things out but that way, they also see that there are themes or risk that might resonate within that area or require a new standard contract term.
Hope this helps
Hi Darren, Thank you for your response. Can you clarify what you mean by "we've also tried to align legal manager to a procurement category"? Would a procurement category be a business segment?
• Fire and Emergency NZ
Hi Mary Jo - sure. Business segment, category or team - by whatever name, we're talking the same.
Hope that this helped, and would love to hear any comments as to how others have done this as well ! b
I would expand to the inclusion of customer name/logo use in marketing material as there would typically be some sort of agreement prior to such marketing material being used. Maybe strike the language or amend to clarify?
• Philips India Limited
I have had experience when we signed non-binding MoU for JVs. The most likely scenario would be that the JV partner may like to advertise to the greater world that they have signed on a path breaking MOU etc., especially if these partners are listed entities. So its advisable to make it explicit that disclosing the existence of agreement covers not just "verbatim" disclosures, but other modes as well - including social media...unless explicitly agreed between the parties.
I agree with the other replies here, the NDA should cover marketing material. It's common courtesy to check the other party is ok with this being shared and customers I have had have explicitly blocked this as a company policy.
• Airbus Defence and Space GmbH
I guess typically companies sign as the risks are possibly manageable ! If that approach is relational or a trust building measure is a very different question ! And I am tempted to say clearly not as imposing terms is quite the opposite to building up a trust based realationship!
• Itron Inc.
In my experience, requests or demands to have suppliers sign NDAs as-is have become the standard. Especially in the case of an RFX pre-requisite, the buyer is in a superior position of leverage, and attempts to negotiate the terms of the NDA may be viewed as an indicator that the supplier will be difficult to negotiate with when the time comes to establish the commercial agreement.
Additionally, most legal departments view NDAs as a strong candidate for click-through or self-help contracting with a strong desire to standardize and remove themselves from what should be a non-complex, straight-forward document. If the NDA provided is not standard for your business, but is reasonable on its terms - review it with your team to ensure everyone knows how to *manage the information and move on to participate in the RFX.
*Standards for management of confidential information used to be fairly straight-forward, with terms indicating that the recipient must protect the discloser's information with the same level of care as it uses to protect its own (but in no event less than a commercially reasonable degree of care). With increasing concerns over cyber-security and data privacy breaches, it's more common to see NDAs carry designated or mandatory safeguards that prescribe processes, controls and other duties that your organization may or may not be capable of providing. Make sure your IT team (or other SME) can confirm you meet the requirements prior to signing.
• Pronto Software
This is not uncommon but there is always a but. For example, is the NDA 2-way or does it only protect one party's CI. Companies are often willing to make an exception to their "no change requirement" if there is compelling and easily articulated (and understood!) argument why a change to an NDA, or an additional NDA, is required.
It would depend on the order of precedence called out in the contract. Depending on what the contractual terms are the order could vary. Without more information I would hesitate to provide a conclusive answer to the question. If you could provide a it more detail it would be greatly appreciated.
• Airbus Defence and Space GmbH
The logic would tell me to start with the particulars and then the general conditions of a Contract :-) usually I try to avoid putting the tender and it's acceptance into the contract as the contract should reflect this accosringvto parties agreement as well ! For me the contract should be the ultimate and final agreement between the Parties! Hope that helps!
-Bid Bond is generally kept as 1%-3% of the estimated Budget and all Bidders should be requested to submit the Bid Bond of the same value, in a Bid Bond format to be provided by the Company in the Bid document.
-The Bid Bond must be verified at the time of opening the Bids. In most of the government tenders , Bids are rejected if the Bid Bond with correct amount and validity is not accompanied along with the Bid.
-Bid Bond must be valid up to the time requested in the Bid document for the validity of Bids.In case of extension requested for validity of Bids from the Bidders the Bid Bond must also be extended accordingly.
-Bid Bond should be released within 30 days after the announcement of successful Bidder / immediately if the tender is cancelled.