Mitigating Risk Strategies For SMEsPresentation Transcript
Mitigating Legal Hotspots On the Road to Growth and Expansion FEI SME Conference November 10, 2011
Legal beyond corporate and litigation
Employment and Consultant Agreements
Employment and Consulting Agreements
Sign it in advance
It’s still a contract for services…
Set scope of contemplated work and return
How can it end, and what are the terms?
NDA and IP, including non-competes
Understand the difference – is it really a duck?
Any consultant is a vendor – think implications – IT, taxes, privacy, RFP’s, insurance
You can’t give what you don’t have
When do you pay? How do you get it back?
Service levels and audit rights
IT – support, escrow, improvements, open source
Limitations and exclusions of liability
Drafting is an Art…
Subject to the termination provisions of this Agreement, this Agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms , unless and until terminated by one year prior to notice in writing by either party.
There is no joint venture legal entity
Agency, Reseller, Referral, Supplier, Corporation
Consider what’s not written on the napkin – who, what, when, where, how
Always be thinking IP and ownership
Implications of a true partnership
Start from within – confidentiality, contracts
Patents vs. Trade Secrets
Patent: useful, novel (i.e. innovative) and non-obvious
Typically lasts for 20 years but can take 4-5 years
Must be disclosed
Cost of a patent infringement suit: $2M to $5M
Prior art search: www.uspto.gov
In US/Canada: one year from disclosure of invention to file for patent. In Europe, you can’t file after invention has been disclosed.
Canada: first to file. US: first to invent. Keep good notes
Provisional patent: establishes filing date and gives you 12 months