Terms are basically things that we agree to do or not to do. For example, a Tenant agrees to pay money for rent, while the Landlord agrees to let the Tenant occupy the property in return. Or a software company will let you use their software for a predetermined amount of time.
Conditions are items that must be satisfied before the transaction becomes binding upon the seller and the buyer. Or after signing/award, the conditions can be items for dissolution of the agreement.
For example, some buyers insert a condition for due diligence that allows the buyer to verify all important details before committing to purchase.
Or if you fail to deliver on or stick to what was agreed, the conditions can spell out how the contract will be terminated.
In the US, Texas or New York are largely considered "neutral territory" whereas in Europe, until very recently UK law was considered neutral. I think that may change with the recent political upheaval.
Yes many organisations are moving beyond mere compliance statements to real actions on the ground. Have a look at the website of QANTAS, ANZ Bank, and Marks & Spencer in UK as examples. I can share more on this topic at our Perth Member Meeting, including what the Mekong Club, STOP THE TRAFFIK, and the Bali Government Forum are also doing. In your part of the world of Western Australia, also check out what Twiggy Forrest is doing.
Thanks for the question and we will hear what others have to say. See you next Tuesday.
Bruce R. Everett, Regional CEO Asia Pacific IACCM
+61 407 535 835 www.iaccm.com
• Fire and Emergency NZ
Hi Gaurav - good question to get the discussion going.
Will be exciting to see what others are doing. I found this overview from Lexology really useful to think about those issues :
It also took me to the link on those who are meant to help prepare guidance (but not much there yet) :
Will be looking up the examples that Bruce has outlined in his post as well to see how some of the bigger companies ahead of the game are looking at it.
Things like these, whilst they can be lots of compliance, can be a good opportunity for procurement teams around the country to look at portfolios and make some early assessments of those contracts at risk !
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.
As Bhagavathi N pointed out, a self certification/declaration can be taken to ensure no deviation is taken by a bidder. This would help in evaluating bids faster.
Following is the indicative language of that declaration for your reference:
"We hereby agree to fully comply with, abide by and accept without variation, deviation or reservation all technical, commercial and other conditions whatsoever of the Bidding Documents and Amendment/ Addendum to the Bidding Documents, if any, for subject work issued by_________.
We hereby further confirm that any terms and conditions if mentioned in our bid, shall not be recognized and shall be treated as null and void."
In addition to all your suggestions, I would think that a self certification from all the stakeholders would serve as a good base for your update to the management unless of course you are using a contract management software that allows you to generate compliance reports.
Hi Mark, Happy to discuss. Send me an email via firstname.lastname@example.org and I can talk about the principles I use.
In my view I don't believe, as a community, we have fully bottomed out all the risks associated with these types of engagement.
• Nokia Solutions and Networks Australia Limited
For a very good, concise review of the principles and issues of cloud agreements generally, covering most of your points above (my view anyway), you might also check out David W. Tollen's book "The Tech Contracts Handbook" online or via this website:
• Neptune Marine Service Ltd
From my limited understanding, Contracts for International Sale of Goods (CISG) will automatically apply to the sales of goods contracts if it meets certain requirements (such as parties have chosen the law of one of the contracting states which have adopted CISG etc..) unless it is expressively excluded from the contract.