With regard to technology, Docusign and others have fairly secure systems in place to ensure the integrity of e-signature contracts. Some organisations, however, still try to arrange in person signings where possible. In these circumstances, though, you will need to ensure that all signed contracts are stored safely and in a searchable repository as finding signed contracts remains a perennial problem for many who do not have comprehensive document repositories deployed.
With regard to your second question, many organisations have their legal functions handle the contract signature process. The larger the organisation, however, the more impractical such a set up can often be, as there are just not enough resources. Many organisations still have the sales function handling the signature process. There should be strict guidelines and processes in place to help ensure integrity and to prevent mistakes such as wrong versions being signed etc.
Hello, this is the type of contract structure my company has used for a while, Master terms, often evergreen, with annual Product and Service Agreements falling under it. I find it really helps create flexibility for purchases through sub agreements since anything that falls under the Master tends to be a shorter document. Generally, the Master governs unless it's a service or product specific term that the Master does not speak to, but we make that all very clear in the body of each section of the agreement. We also make it clear that any agreement falling under the Master only stays in effect as long as there is a Master in effect; though I have seen agreement terms that state until the end date of the sub agreement the Master terms still govern even if that Master has expired.
For Order of precedence I've seen it done with a list, as already mentioned, we try to keep things as uncomplicated as possible, so sub agreements just refer back to the specific Master, which supersedes any PO terms, and each sub agreement only speaks to one topic.
I don't have much of an issue with PO/SOW (for me, service agreement) alignment, ours is a pay at the beginning of the term, after agreement execution, so PO creation can occur after the service term has been set, but I would imagine there should be some sort of language you could include in your SOW that would address that concern...
Hi, I would be willing to have a chat about this. I am a lawyer with more than 20 years experience and although I have not worked extensively with modular contracting, I should be able to provide some advice. Please reach out to me at firstname.lastname@example.org.
If I understand the question correctly, it is asking about the benefits and challenges of breaking contract terms into, for example, POs/SOWs, Master Agreements, Terms of Service, Data Processing Agreements, etc. This has certainly become the norm in the technology industry allowing for multiple purchases under a single master agreement, with the added benefit of allowing companies to amend the ancillary agreements on notice or website updates. Most deal with the order of precedence by listing the agreement order. It may, however, be better to set the order based on the nature of the term, so that updates to data processing agreements take priority over all other agreements. With respect to survival, the most common approach is to extend contractual terms until the expiration of the last PO or SOW or some period following such expiration.
This is a very broad question! Shared services is normally internal, so what sort of 'shared service' do you mean?
Critical elements will be definition of scope, provisions for change In services, charging mechanism and KPIs.
In addition to the provisions that you might find in a typical services agreement (www.contractstandards.com/public/contracts/master-services-agreement) and statement of work www.iaccm.com/resources/, I would also make sure that you cover governance, change management, and innovation. In my experience, it is likely that the Shared Services model will change significantly over the life of the arrangement and you need to make sure that there are agile provisions in place to support such changes.
If you could provide more detail, perhaps our community will be able to provide you with a fuller response.
Thanks Paul and Anonymous for your response. I'm going to propose Shared Services Model to the Customer for Service Desk and End User Computing. It is primarily resource sharing across different Customers. Along with scope of services, support level, governance, charging mechanism, change management etc., I think its also important to address Security and Confidentiality of Customer's data in the Contract.
Can you please help me with a few model clauses that can be leveraged for Security and Confidentiality pertinent to Shared Services Model ? It would be great if you can share a standard agreement which was drafted for Shared Services only.
Thank you for your post. Choosing a neutral and well understood place of jurisdiction and applicable law is often the obvious answer when parties are located in countries that are unfamiliar. The Laws of England and Wales and the Laws of Switzerland are often used as neutral third party jurisdictions not least because they have well-developed and reputable jurisprudence. I note that you are proposing to include Arbitration according to LCIA - Article 16.4 of the new LCIA rules provides that, unless the parties have agreed otherwise in writing, the law of the seat of the arbitration will also apply as the law governing the arbitration agreement. Equally you could propose the adoption of the UNIDROIT principles which you can read more on here: www.unidroit.org/contracts.
Clearly a concern with unfamiliar jurisdictions is enforceability and the quality of the overall legal system. As this article indicates, Rwanda has made major efforts to develop its legal system and understands its importance in the context of international trade www.lexology.com/library/detail.aspx
In principle, your response sounds correct. Altering the terms unilaterally after award may indeed represent a material change, though of course you will need to make a prompt assessment of the nature and impact of the changes.
From your post, I get the impression that the Ts&cs are being driven by the consultant - but is that the case? Does the owner mandate the 'standard' and have they made the alterations - perhaps a result of current market conditions and experiences? Understanding the source and rationale behind the changes may be important in determining how and where you push back.
Of course you may want to revert on specific impact - for example, does this affect your price or delivery commitments? You may also want to negotiate some of the altered terms - for example, if risk allocation has shifted. But another response could be to take the position that this opens up more general negotiation and that if there are terms they want to change, you also have some changes you'd like made.
If these alterations were inspired by the consultant, they may back down because they will perhaps not want to explain to their client why this delay is occurring (especially if they made a mistake in the initial terms that were attached). But if the origin is the customer, you may need to be more cautious, especially if you do not have an existing or strong relationship.
You will find extensive guidance on Force Majeure in the Resource Library on the IACCM website.
As you can imagine, this clause has been the subject of much writing in recent weeks and many organizations are reviewing their current approach. It is important to remember that a claim of Force majeure has to be accompanied by clear evidence that performance is impossible and it is also the duty of the party claiming Force Majeure to take all reasonable steps to mitigate its consequence. If it is the supplier claiming Force majeure, it is reasonable that the customer might terminate or seek alternate supply - and there is no particular reason why that action could not be immediate if they so wish.
Obviously there are many factors to take into account. For example, is the supplier simply suggesting there will be a delay in supply, or are they no longer able to supply at all? Will it be quicker and easier for the customer to find an alternate, or to accept the revised date? In general, any claim of Force majeure results in some level of negotiation. It cannot be used by either party just as a matter of convenience.
• GMR Energy LImited
Answers to questions in same order as above:
1) Termination for prolonged FM - Generally its a negotiated term. Typically for a FM event neither party is liable for any compensation from the other side, specially if its a natural one and insurance covers are available.Termination right to trigger after indemnity period under insurance covers. If no such inusrance cover is available then it becomes a commercial decision for how long my budget under the contract can sustain such loss . That should decide the period of FM event beyond which termination right can be excercised under the contracts.
2) Alternate vendor - This provision is a must for eventuality . Experience - it is used only rare cases , as removing the existing vendor and putting a new vendor is generally comes with additional risks. So even if vendor is on the wrong side of the contract in terms of cost (not time) then we may compromise and move ahead as the alternate option is more expensive. In the instant that existing vendor is not at all able to perform because it has become financially bankrupt or some thing else the we do not have any choice but to terminate and deploy alternate vendor.
3) Yes its a standard practice to put such provisions under the contracts. However these practices are typically used in one time contracts , when we do not have any subsequent use of the vendor. But if we are depending on them for a long period and repeated orders etc. it becomes difficult and owners/customers tend to compromise.