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.
I suppose this depends on what you mean by a Contract Agreement. If you have a Master Services Agreement in place that contains agreed legal terms and conditions, signed off by both parties, then the RFP process could proceed. However, depending on the types of good or service being sought, i.e a major construction project, then the terms and conditions within the Master Services Agreement may not be appropriate, its always best to consult a legal professional before you issue the RFP to ensure all legal provisions are either sufficient or addressed.
• AJA Global Consultancy Services, LLC
Pallab, I may be missing something from your description of the issue; or what you describe as "execute a Contract Agreement (signed by both parties)..." could be the reason of my confusion.
It is not clear to me if your organization represents the buyer or purchaser side (who is the party making pressure to move ahead). But anyway, the practice you are describing seems to me as the typical recipe for potential claims. As Gary says in his reply: seek in-house legal advice.
Sorry I can not be of much help.
• Bahrain National Gas Co. (B.S.C)
What I mean by the Contract Agreement is the Form of Agreement which is generally the first covering pages of any standard Contact wherein it is stated..
This Agreement is entered into on the xth day of ... by and between ......
followed by the list of documents that together constitute the Contract and showing the precedence of documents in the event of conflict between the documents.
A blank Form of Agreement is provided as a format along with the tender documents which is finally filled up and signed by us and the successful tenderer. The format when filled up and signed, we call it the 'Contract Agreement'. This document is used for tenders (for services, construction works, etc.) having reasonably high estimates where full tender package is used to invite bids.
On the other hand, for small supply orders ( spare parts, plant consumables, etc.) a system generated RFP document is used to invite bids and eventually a system generated PO is issued referring to RFP document and supplier's quotation.
Now let me rephrase my question as - is there any thumb rule ( example- bid estimate) that could be followed as a criterion to determine
• when a full fledged tender document to be used to invite bids and finally a Form of Agreement is signed off to conclude a Contract, and
• when a simple RFP document to be used to invite bids and and just a system generated Purchase Order is issued to the winning bidder, and no Contract Agreement is executed.
• 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.
I agree with your thought Unlimited liability means Unlimited exposure irrespective of size of contract.
If there is no way to Limit your liability then atlast include a clause that defines a process of identifying liability. E.g If a Mistake happens by your employee due to some vulnerability in Client/Customer systems/process then is it only your fault or customer is also responsible for it ?.. If both parties agree to jointly decide on mechanism for fixing ownership of issue then you get a fair chance to defend yourself. Just my thoughts...
Thank you for your response. Most of these happen to be government contracts where one is unable to propose any changes. Do organizations that work with government customers usually willing to undertake the risk of unlimited liability? I am also guessing that there may potentially be no risk that will require indemnification, in a product supply contract or am I underestimating?
-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.
I like this idea. 15 years ago(!) a colleague tried to introduce 'plain English' contracts to a UK Aerospace manufacturer. It had some success, but ultimately didn't take hold. I am guilty of saying "execute" instead of "sign" and "pursuant to" instead of, er, well nothing really.
Highly appreciated initiative. Increasing the user friendliness of contracts are, in my view, not prioritized. But you are up against a tradition and practice that is hard to change, even through graphic illustrations are proven to have multiple benefits.
Camilla Andersen gave a presentation on Comic Contracts in the last local DK IACCM meeting facilitated by Ramboll. Where you place yourself in the scale of using graphics (visulisations supporting the text or a full blown comic contract) may depend on the case, audience and "environment" you are operating in..
Camilla also provided this link: www.comicbookcontracts.com/
I'm just trying to understand your position.
Considering that you are managing all contractual relationship with another company (buy and sell side) sounds actually good from your company perspective. It would mean, that your leadership can expect you to have a full overview about the contractually back and forth with this JF. Therefore I assume it's hard to change the mind of your leadership, since I would expect them to see your doublerole as positive.
However on the other side, there is your personal position, meaning being something in the middle of a sandwich, right? I'm not sure about your empowerment, but in worst case you have also very limited authority to change some company rules (discounts, penalties, payment conditions, acceptance criteria etc.). And on buy side you usually have different contractual expectation than on sell side. I assume, this is the tricky part in your situation. Fulfilling the internal requirements for buy- and sell side with the same contractual partner at the same time (and maybe also your partner asks you if you are a bit crazy, since requesting sooo different contracts when you are either on sell side or on buy side).
When the conditions your company expect in contracts are very different on sell side and buy side, this should be communicated as an issue (to your leadership). I think there are 2 options as solution: either the requested second CM as you suggest, or an escalation to the leadership to align clear buy and sell conditions between your company and the JF, which are equal to both parties. such framework conditions would make at least your position more clear. And maybe there won't be anymore need of a split of the CM roles buy side and sell side?
Since I couldn't find many information in your post, I hope, this is somehow helpful?
If your uncomfortable position has other reasons, please let me know.
• Omaha Public Power District
I probably would start collecting facts: Firstly, establish the relationship between Your Company ("Y Company") and Company X ("X Company") by looking at any specific, written agreement about the services ("X and Y Services"). Also, establish clarity around (1) Y Company's services to be provided to X Company, and (2) X Company's services to be provided to Y Company. At this point, are there any conflicts that you can see/anticipate in your ability as the Contract Manager during the provision of X and Y Services, that perhaps could result in non-performance or non-compliance? Also, how do you escalate and cure any issues of non-performance (for example)? Secondly, I would review the files documenting any legal review, if any, prior to said agreement being reviewed for signature/execution. Were there any concerns that were raised and eventually resolved (internally)? AT the very least, you could start with the resource allocation -- that is, regarding your time management and how to better allocate your skills - in developing your case. Hope this helps. Regards ~ Rose
Its an interesting role and I recommend your decision to bring in another manager to take one of the contracts.
I would recommend to present this as two different roles:
On the buy side - Contract Manager would play role of a customer and to manage Company X, need to drive and establish Vendor Management Discipline around Contract Administration / Governance / Service Performance / Financial Management / Risk and Compliance
On the sell side - Contract Manager would play role of an engagement partner to drive business relationship / Value addition to Company X/ increase revenue generation from Company X to your company / Joint go-to-market strategy if possible.