The document discusses the top mistakes made in contracts. Some of the key mistakes highlighted include failing to adequately investigate future business partners, not conducting proper due diligence, and not having a lawyer review contracts. It emphasizes that all terms of a contract should be negotiated carefully and nothing should be assumed, as assumptions can be harmful. All details, even small ones, should be explicitly defined in the contract to avoid disputes down the road.
CCS ARC - A question of ethical sellingGary Luther
The document discusses hidden contractual clauses in telecommunications and IT contracts that can cost businesses money. It provides details on five common issues businesses encounter:
1. Automatically Renewable Contracts (ARCs) that automatically roll over to a new contract period unless the customer informs the provider they do not wish to renew.
2. Selling on of contracts when a supplier goes bankrupt, transferring the contract to a new provider.
3. A change in circumstance triggering the start of a new minimum contract period.
4. Subjective termination fees imposed by providers.
5. Minimum spend clauses requiring a business to spend a certain amount.
The document advises businesses to carefully review existing contracts and clauses
This document discusses various legal issues related to buying a business, including warranties, representations, indemnities, and contractual terms and conditions. It covers topics such as pre-contractual representations, specific contract terms around goodwill, leases, employees, reduced deposit clauses, exclusion clauses, and early access. The presenter discusses negotiating representations and warranties, statutory impacts on contract law, misleading or deceptive conduct, and unconscionable conduct. Rules for interpreting contracts and implied terms are also outlined.
This document discusses auto dealer advertising compliance and the challenges involved. It notes that while advertising can generate sales, non-compliant ads can result in legal and regulatory issues. The document outlines federal and state laws governing advertising and why they are difficult for dealers to navigate. It provides examples of advertising practices that typically trigger enforcement actions and emphasizes the importance of truth, clarity and disclosures in all advertising platforms and materials. The conclusion reiterates that compliance is important to avoid costly fines, lawsuits and reputational damage.
Protecting Your Critical Customer Relationships and Trade SecretsAlexNemiroff
Are non-compete agreements really enforceable in our State? What are some special considerations in the financial and medical industries? Is injunctive relief available to protect our customer relationships and trade secrets? Can we terminate an employee and still enforce a non-compete agreement? Should we include a liquidated damages provision in our restrictive covenant agreements? What damages are available to our company should we prevail?
This document summarizes key topics in business law including corporations, shareholder derivative litigation, the business judgment rule, Sarbanes-Oxley, Dodd-Frank, agency law, contracts, and risk allocation in contractual indemnity. It discusses concepts like demand and demand futility in shareholder litigation, fiduciary duties and the presumption of the business judgment rule, whistleblower protections, agency relationships and duties of principals and agents, contract formation and validity, and allocation of defense and indemnity obligations.
Protecting Confidential Information When an Employee Leaves-apANTHONY PALAZZO
The document discusses protecting confidential information when an employee leaves a company. It outlines that non-disclosure agreements (NDAs) aim to restrict sharing confidential information after employment, while non-compete clauses prevent working for competitors. However, the law around these is complex and varies by state. Courts may modify non-compete agreements to make them enforceable if they are deemed reasonable in terms of restrictions. The best way for companies to protect trade secrets may be through open communication with departing employees regarding stability, compensation, and respect.
This document provides guidance on effectively drafting limitation of liability (LoL) clauses. It discusses several key issues and risks to consider:
- LoL clauses may not apply to claims arising after a contract terminates or those not explicitly related to the agreement. The document advises explicitly listing specific claims covered to avoid disputes.
- When using a LoL clause in California, it should expressly state that it applies to negligence claims to be effective for both active and passive negligence.
- LoL clauses may not be enforceable for limiting liability from gross negligence, depending on state law. If wanting to limit such liability, ensure the governing law supports it.
- LoL clauses should be conspicuous to reduce
CCS ARC - A question of ethical sellingGary Luther
The document discusses hidden contractual clauses in telecommunications and IT contracts that can cost businesses money. It provides details on five common issues businesses encounter:
1. Automatically Renewable Contracts (ARCs) that automatically roll over to a new contract period unless the customer informs the provider they do not wish to renew.
2. Selling on of contracts when a supplier goes bankrupt, transferring the contract to a new provider.
3. A change in circumstance triggering the start of a new minimum contract period.
4. Subjective termination fees imposed by providers.
5. Minimum spend clauses requiring a business to spend a certain amount.
The document advises businesses to carefully review existing contracts and clauses
This document discusses various legal issues related to buying a business, including warranties, representations, indemnities, and contractual terms and conditions. It covers topics such as pre-contractual representations, specific contract terms around goodwill, leases, employees, reduced deposit clauses, exclusion clauses, and early access. The presenter discusses negotiating representations and warranties, statutory impacts on contract law, misleading or deceptive conduct, and unconscionable conduct. Rules for interpreting contracts and implied terms are also outlined.
This document discusses auto dealer advertising compliance and the challenges involved. It notes that while advertising can generate sales, non-compliant ads can result in legal and regulatory issues. The document outlines federal and state laws governing advertising and why they are difficult for dealers to navigate. It provides examples of advertising practices that typically trigger enforcement actions and emphasizes the importance of truth, clarity and disclosures in all advertising platforms and materials. The conclusion reiterates that compliance is important to avoid costly fines, lawsuits and reputational damage.
Protecting Your Critical Customer Relationships and Trade SecretsAlexNemiroff
Are non-compete agreements really enforceable in our State? What are some special considerations in the financial and medical industries? Is injunctive relief available to protect our customer relationships and trade secrets? Can we terminate an employee and still enforce a non-compete agreement? Should we include a liquidated damages provision in our restrictive covenant agreements? What damages are available to our company should we prevail?
This document summarizes key topics in business law including corporations, shareholder derivative litigation, the business judgment rule, Sarbanes-Oxley, Dodd-Frank, agency law, contracts, and risk allocation in contractual indemnity. It discusses concepts like demand and demand futility in shareholder litigation, fiduciary duties and the presumption of the business judgment rule, whistleblower protections, agency relationships and duties of principals and agents, contract formation and validity, and allocation of defense and indemnity obligations.
Protecting Confidential Information When an Employee Leaves-apANTHONY PALAZZO
The document discusses protecting confidential information when an employee leaves a company. It outlines that non-disclosure agreements (NDAs) aim to restrict sharing confidential information after employment, while non-compete clauses prevent working for competitors. However, the law around these is complex and varies by state. Courts may modify non-compete agreements to make them enforceable if they are deemed reasonable in terms of restrictions. The best way for companies to protect trade secrets may be through open communication with departing employees regarding stability, compensation, and respect.
This document provides guidance on effectively drafting limitation of liability (LoL) clauses. It discusses several key issues and risks to consider:
- LoL clauses may not apply to claims arising after a contract terminates or those not explicitly related to the agreement. The document advises explicitly listing specific claims covered to avoid disputes.
- When using a LoL clause in California, it should expressly state that it applies to negligence claims to be effective for both active and passive negligence.
- LoL clauses may not be enforceable for limiting liability from gross negligence, depending on state law. If wanting to limit such liability, ensure the governing law supports it.
- LoL clauses should be conspicuous to reduce
The document summarizes an interview with a procurement attorney who criticizes recent Small Business Administration (SBA) rule changes regarding oversight of contracts awarded to small businesses under the 8(a) Business Development program. The attorney argues that the rule leaves small businesses vulnerable by delegating all contract administration responsibilities to procuring agencies without ensuring agencies treat small firms fairly. The attorney calls for SBA to provide more advocacy support to help small businesses facing issues like unfair contract terminations.
At the root of appeals from judgments in commercial cases is the burning question: Does the result make sense from a business perspective? or put in more legally-eloquent language: Does this result meet the test of commercial reasonableness? "Commercial Reasonabless" is a concept Canadian courts address frequently to determine if business conduct or a result makes sense.
This paper will show that in commercial appeals, the Court of Appeal generally operates on the principle of commercial reasonableness. If the relief sought is not commercially reasonable, then you are unlikely to achieve a successful result for your client. I hope to show that appellate courts in Ontario approach appeals involving commercial disputes by asking whether the trial judge’s decision was commercially reasonable. In short, The court will not adopt an interpretation that is clearly commercially absurd.
The author is a senior business litigation and arbitration lawyer in Toronto who has argued many business appeals in the Ontario Court of Appeal. He is also an experienced trial and arbitration counsel. Senior partner of Ellyn Law LLP Business Litigation & Arbitration Lawyers, Mr. Ellyn heads a team of competent litigation lawyer who are at the vanguard of developments of business litigation and arbitration in Ontario. Igor Ellyn is also the Chair of the Business Litigation & Arbitration Practice Group of INBLF.com, the International Network of Boutique Law Firms.
The authors explain how a Business Legal Checkup ("BLC") can be useful. BLC is a diagnostic tool small and medium size businesses can use to verify if legal aspects of their operation comply with law and to minimize risk, litigation and expense. When the BLC is completed, the business owner receives a lawyer’s report red-flagging matters which need correction, improvement or further legal advice. Contact the authors for more information.
1) The document discusses two cases from Ghana that highlight how the courts have failed to protect creditors' rights by strictly applying the doctrine of separate corporate entity from the Salomon v. Salomon case.
2) In the first case, Majdoub & Co. Ltd. v. Bartholomew & Co. Ltd., a limited company was formed to take over the assets and liabilities of a partnership to avoid paying a debt, and the court did not consider this a fraud on the creditors.
3) In the second case, Grant v. Tikobo (Ghana) Ltd., a company sold its assets without creditors' knowledge to avoid a debt, and again the court did not protect the creditors
Helen Kim - 2015 Roundtable SecuritiesHelen B. Kim
The document summarizes a roundtable discussion about recent developments affecting securities litigation, including the ATP Tour v. Deutscher Tennis Bund decision on fee-shifting bylaws and the Halliburton Co. v. Erica P. John Fund Inc. ruling. The participants, who are lawyers from various firms, discussed how the ATP Tour decision could enable fee-shifting in securities litigation but may not apply to fraud claims. They also debated whether fee-shifting bylaws could curb frivolous suits or deter valid litigation, and anticipated regulatory and legislative responses. Regarding Halliburton, the ruling maintained the fraud-on-the-market theory but made it easier for defendants to rebut the presumption
This document summarizes key issues related to employee defection and trade secrets. It discusses how California law strongly prohibits non-compete agreements but allows some restrictions to protect legitimate business interests, such as non-solicitation of customers if trade secrets are involved. The article also examines exceptions to California's restrictions and outlines types of agreements that courts generally uphold, such as confidentiality agreements. It provides analysis of legal issues around departing employees, unfair competition, and protecting trade secrets.
Non-competition and Non-solicitation ProvisionsKevin Learned
In this seminar we analyzed non-competition and non-solicitation provisions in the contexts of M&A transactions, employee/consultant relationships and subcontracting agreements. We addressed issues that arise in the drafting and negotiation of these provisions, as well as issues related to enforcement and litigation, with a particular emphasis on issues impacting federal service contractors who operate in the DC/MD/VA region.
Presentation materials for my talk on the basics of contract law given to the Canadian-Chinese Professional Accountants Association. It covers some of the basic concepts, and some common terms. I discussed common errors and misunderstandings, and elaborated on different negotiation strategies as well.
This document is a 3-page assignment submitted by Lisa Watson for a Consumer Protection Law course. It discusses key concepts related to advertising under the Australian Consumer Law, including the definitions of "puffery" and "misleading or deceptive". It analyzes how the target audience and ability to substantiate claims impact whether an advertisement contravenes the ACL. Case law examples are provided to illustrate how these concepts have been applied in past legal decisions regarding advertising.
Trade Secret and Unfair Competition - Employment IssuesQWCooper
Protecting Trade Secrets is critical for business success.
This presentation will provide a general overview of trade secrets
and unfair competition in the work place and provide some tools for companies to safeguard trade secrets and mitigate potential risks.
The document discusses three questions related to a case involving Syarikat Kimia Mutiara, Company X, and Company Z.
For question 1, it analyzes whether Syarikat Kimia Mutiara's actions in transferring Company X's chemical plant design plans to Company Z without permission were morally permissible. It considers factors like whether the plans were patented and how similar Company Z's plans were. It concludes Syarikat Kimia Mutiara's actions were unethical.
For question 2, it discusses whether an employee Anna providing information to her boyfriend's company, Company X, about Syarikat Kimia Mutiara's actions constitutes whistleblowing. It determines Anna's actions were gossip,
The document analyzes three cash payments made by a Cydia executive, Mr. Wang Zhang, related to Cydia securing a deal with China Mobile Limited (CML). The first payment to the CEO of a state-owned telecom raises FCPA issues as it was made to influence and secure the deal. The second payment to the videogame company run by the CEO's wife also likely violates the FCPA. The third payment as a charitable donation raises issues as it was made in exchange for exemptions and approvals helpful to the deal. Overall, the memo concludes the payments were likely intended to improperly influence foreign officials and secure the deal, and thus probably violate the anti-b
When advising business clients about doing business in Canada, lawyers must turn their minds not only to the kinds of corporate vehicles which Canadian law permits but also the remedies permitted if disputes arise. In this paper, we highlight the range of remedies available in the common law jurisdictions of Canada to protect shareholders and others from abusive corporate action.
This is the fourth update revision of a paper which was first published on the internet in 2005. It has been widely read and has been well-received by clients and other lawyers. We believe that we have been repeatedly quoted by other lawyers. Our paper was used in global corporate law texts in Asia and was including in required reading for a business valuators program in Canada.
This paper begins by discussing the various sources of shareholder rights, including corporate statutes, articles of incorporation and by-laws, and shareholder agreements. Although securities laws will also be briefly mentioned, the securities regime is exceedingly complex and it is beyond the scope of this paper to address it in detail. We then discuss the remedies provided by corporate statute to shareholders who are aggrieved by the manner in which management conducts the business and affairs of the corporation, including voting, court-ordered meetings, derivative actions, the oppression remedy, investigations, appraisals and court-ordered winding-up on the “just and equitable principle”.
The oppression remedy, widely acknowledged to be the most powerful weapon in the shareholder's arsenal of remedies, focusses on two particular points: the broad definition of "complainant" under corporate statutes, and the manner in which the courts have defined the reasonable and legitimate expectations of shareholders and other "proper persons" under the oppression remedy.
The authors are members of ELLYN LAW LLP Canadian Business Litigation & Arbitration Lawyers, a Toronto law firm, specializing in dispute resolution for small and medium businesses and their shareholders. The firm is a member of the International Network of Boutique Law Firms (www.inblf.com), a prestige network of specialized law firms who have demonstrated pre-eminence their practice fields. Ellyn Law LLP is INBLF’s designated Toronto firm for shareholder disputes and arbitration. Igor Ellyn, QC is the Chair of INBLF's Business Litigation & Arbitration Practice Group.
In the seven years since this paper was first published, ELLYN LAW LLP has acted on dozens of complex shareholder disputes. Despite our long experience in this area, each case brings its shares of new twists and surprises. In each revision of this paper, we have added the benefits of our added experiences.
In late September, the Federal Trade Commission announced what is likely the most substantial auto dealer enforcement action in the agency’s history. While most of the FTC’s earlier cases have focused solely on dealer advertising, this action against 9 California dealerships alleges over a dozen different types of violations. And unlike previous cases where there were no initial monetary penalties, this time it looks like they’re seeking massive financial consequences for the dealers involved.
In this informative presentation we’ll examine each of the FTC’s latest claims in detail and discuss best practices on how your dealership can avoid being targeted by federal and state regulators. The game is changing and it pays to be prepared.
This document provides a quiz on moral choices facing employees, including questions on employer/employee relations, conflicts of interest, insider trading, trade secrets, the Foreign Corrupt Practices Act, whistleblowing, and gifts in business situations. It contains multiple choice, true/false, short answer, and essay questions on these topics.
1Legal Issues for Managers 2007GIRLecture 9(Week 10)M.docxfelicidaddinwoodie
1
Legal Issues for Managers: 2007GIR
Lecture 9
(Week 10)
Module 3 (Part 2):
The Law of Business Associations
Law of Agency &
Law of Partnership
1
Administration
Ensure that you check the announcements on [email protected] ([email protected]) and your marks in My Marks.
You should now have your Mid-Semester Exam marks available in My Marks. If you want genuine feedback (not simply checking your grade as they have been scanned), you can see your exam papers this week during the times provided on [email protected] course site. A time will also be made available for the Deferred Mid-Semester Exams when we have received them back from scanning.
A notice about the time, date & place of the Deferred Mid-Semester Exam is now available on the course website.
IF you want to do well on the FINAL EXAM, in addition to making a genuine effort on the ASSIGNMENT continue practising your ILACs before you attend your seminars, add a few notes to your answers, download the seminar slides and try to attempt the answer again on your own. If you did not have a satisfactory answer, see your tutor in consultation and bring along your ILAC homework attempts. This is the most effective way to prepare for the Final Exam.
2
2
Recap of Last Week
The Law of Companies/Corporations
Summary
The essential characteristics of a ‘company’ and why they are important.
The different types of business structures available, in particular companies, and when can they be used to meet the needs of business & society.
The main duties imposed upon the directors of a company.
The concepts of insolvency and insider trading.
The way companies can be wound-up.
Quick Question:
The Corporations Act 2001 (Cth) prohibits trading in shares with the advantage of information that is not publicly available. This offence is also known as …………………………… and is prohibited by section ..........
3
3
Business Structures
BUSINESS
STRUCTURES
Sole
Trader
Partnership
Joint
Venture
Incorporated
Associations
Trust
Company
Proprietary
Company
Public
Company
Large
Small
4
Seek the advice of a good accountant & lawyer when considering what form of business structure you may want to set-up. The main consideration should be liability – Not taxation. Thus, this message applies to today’s lecture and next weeks! Strategic planning is the key to business success.
44% of businesses fail in the first 3 years
Failing to plan, is planning to fail!
See separate mind-map on the types of companies in those lecture slides when available
http://www.business.gov.au/business- ...
13 Startup Company Pitfalls - and How to Avoid Them.PPTXMax Masinter
The document outlines 13 common legal pitfalls that startup companies face and how to avoid them. Some of the key pitfalls discussed include choosing the wrong business entity, failing to protect founders through buy-sell agreements, pursuing the wrong sources of funding, and not establishing proper intellectual property and contract strategies. The presentation provides advice on selecting the optimal entity structure, implementing founder exit plans, evaluating funding options, and using tools like patents, confidentiality agreements, employment contracts, and equity compensation to mitigate risks for startups.
CBA Presentation: Common Legal Mistakes Small Businesses Make And How To Avoi...John Watkins
May 2009 Presentation for Chamblee Business Association on common legal mistakes that small businesses make and possible ways to avoid them. This presentation is the result of seeing mistakes made over and over again. This presentation is available as a podcast (slides and audio) at www.ctflegal.blip.tv
Know Recovery of dues remedies under Laws of India and what are the Pre-Litigation Techniques and more on Recovery to avoid any Outstanding being treated as Bad-Debts
This document provides an overview of key provisions that should be considered when negotiating vendor contracts and consulting agreements. It discusses 20 essential elements that should be addressed in vendor contracts, including the scope of services, standards of performance, compensation, intellectual property ownership, confidentiality, insurance, indemnification, and dispute resolution. It also outlines 7 considerations for consulting agreements, such as defining the services, specifying an independent contractor relationship, and ensuring confidentiality. The document emphasizes having legal counsel review agreements to avoid potential issues in the future.
New Contract Opportunities Through Teaming AgreementsRobert Cogan
A smaller defense company can create new opportunities by teaming with larger prime contractors. But the company must know how to make the opportunity work and how to avoid the pitfalls
The document discusses various legal agreements and provisions that are important for businesses to address, including operating agreements, buy-sell agreements, confidentiality agreements, commercial leases, purchasing real estate, and protecting trade secrets. It emphasizes getting contracts in writing and properly executing them to protect business owners and assets. Specific types of agreements covered include LLC operating agreements, buy-sell agreements, work for hire contracts, and compliance with home solicitation sales acts.
The document summarizes an interview with a procurement attorney who criticizes recent Small Business Administration (SBA) rule changes regarding oversight of contracts awarded to small businesses under the 8(a) Business Development program. The attorney argues that the rule leaves small businesses vulnerable by delegating all contract administration responsibilities to procuring agencies without ensuring agencies treat small firms fairly. The attorney calls for SBA to provide more advocacy support to help small businesses facing issues like unfair contract terminations.
At the root of appeals from judgments in commercial cases is the burning question: Does the result make sense from a business perspective? or put in more legally-eloquent language: Does this result meet the test of commercial reasonableness? "Commercial Reasonabless" is a concept Canadian courts address frequently to determine if business conduct or a result makes sense.
This paper will show that in commercial appeals, the Court of Appeal generally operates on the principle of commercial reasonableness. If the relief sought is not commercially reasonable, then you are unlikely to achieve a successful result for your client. I hope to show that appellate courts in Ontario approach appeals involving commercial disputes by asking whether the trial judge’s decision was commercially reasonable. In short, The court will not adopt an interpretation that is clearly commercially absurd.
The author is a senior business litigation and arbitration lawyer in Toronto who has argued many business appeals in the Ontario Court of Appeal. He is also an experienced trial and arbitration counsel. Senior partner of Ellyn Law LLP Business Litigation & Arbitration Lawyers, Mr. Ellyn heads a team of competent litigation lawyer who are at the vanguard of developments of business litigation and arbitration in Ontario. Igor Ellyn is also the Chair of the Business Litigation & Arbitration Practice Group of INBLF.com, the International Network of Boutique Law Firms.
The authors explain how a Business Legal Checkup ("BLC") can be useful. BLC is a diagnostic tool small and medium size businesses can use to verify if legal aspects of their operation comply with law and to minimize risk, litigation and expense. When the BLC is completed, the business owner receives a lawyer’s report red-flagging matters which need correction, improvement or further legal advice. Contact the authors for more information.
1) The document discusses two cases from Ghana that highlight how the courts have failed to protect creditors' rights by strictly applying the doctrine of separate corporate entity from the Salomon v. Salomon case.
2) In the first case, Majdoub & Co. Ltd. v. Bartholomew & Co. Ltd., a limited company was formed to take over the assets and liabilities of a partnership to avoid paying a debt, and the court did not consider this a fraud on the creditors.
3) In the second case, Grant v. Tikobo (Ghana) Ltd., a company sold its assets without creditors' knowledge to avoid a debt, and again the court did not protect the creditors
Helen Kim - 2015 Roundtable SecuritiesHelen B. Kim
The document summarizes a roundtable discussion about recent developments affecting securities litigation, including the ATP Tour v. Deutscher Tennis Bund decision on fee-shifting bylaws and the Halliburton Co. v. Erica P. John Fund Inc. ruling. The participants, who are lawyers from various firms, discussed how the ATP Tour decision could enable fee-shifting in securities litigation but may not apply to fraud claims. They also debated whether fee-shifting bylaws could curb frivolous suits or deter valid litigation, and anticipated regulatory and legislative responses. Regarding Halliburton, the ruling maintained the fraud-on-the-market theory but made it easier for defendants to rebut the presumption
This document summarizes key issues related to employee defection and trade secrets. It discusses how California law strongly prohibits non-compete agreements but allows some restrictions to protect legitimate business interests, such as non-solicitation of customers if trade secrets are involved. The article also examines exceptions to California's restrictions and outlines types of agreements that courts generally uphold, such as confidentiality agreements. It provides analysis of legal issues around departing employees, unfair competition, and protecting trade secrets.
Non-competition and Non-solicitation ProvisionsKevin Learned
In this seminar we analyzed non-competition and non-solicitation provisions in the contexts of M&A transactions, employee/consultant relationships and subcontracting agreements. We addressed issues that arise in the drafting and negotiation of these provisions, as well as issues related to enforcement and litigation, with a particular emphasis on issues impacting federal service contractors who operate in the DC/MD/VA region.
Presentation materials for my talk on the basics of contract law given to the Canadian-Chinese Professional Accountants Association. It covers some of the basic concepts, and some common terms. I discussed common errors and misunderstandings, and elaborated on different negotiation strategies as well.
This document is a 3-page assignment submitted by Lisa Watson for a Consumer Protection Law course. It discusses key concepts related to advertising under the Australian Consumer Law, including the definitions of "puffery" and "misleading or deceptive". It analyzes how the target audience and ability to substantiate claims impact whether an advertisement contravenes the ACL. Case law examples are provided to illustrate how these concepts have been applied in past legal decisions regarding advertising.
Trade Secret and Unfair Competition - Employment IssuesQWCooper
Protecting Trade Secrets is critical for business success.
This presentation will provide a general overview of trade secrets
and unfair competition in the work place and provide some tools for companies to safeguard trade secrets and mitigate potential risks.
The document discusses three questions related to a case involving Syarikat Kimia Mutiara, Company X, and Company Z.
For question 1, it analyzes whether Syarikat Kimia Mutiara's actions in transferring Company X's chemical plant design plans to Company Z without permission were morally permissible. It considers factors like whether the plans were patented and how similar Company Z's plans were. It concludes Syarikat Kimia Mutiara's actions were unethical.
For question 2, it discusses whether an employee Anna providing information to her boyfriend's company, Company X, about Syarikat Kimia Mutiara's actions constitutes whistleblowing. It determines Anna's actions were gossip,
The document analyzes three cash payments made by a Cydia executive, Mr. Wang Zhang, related to Cydia securing a deal with China Mobile Limited (CML). The first payment to the CEO of a state-owned telecom raises FCPA issues as it was made to influence and secure the deal. The second payment to the videogame company run by the CEO's wife also likely violates the FCPA. The third payment as a charitable donation raises issues as it was made in exchange for exemptions and approvals helpful to the deal. Overall, the memo concludes the payments were likely intended to improperly influence foreign officials and secure the deal, and thus probably violate the anti-b
When advising business clients about doing business in Canada, lawyers must turn their minds not only to the kinds of corporate vehicles which Canadian law permits but also the remedies permitted if disputes arise. In this paper, we highlight the range of remedies available in the common law jurisdictions of Canada to protect shareholders and others from abusive corporate action.
This is the fourth update revision of a paper which was first published on the internet in 2005. It has been widely read and has been well-received by clients and other lawyers. We believe that we have been repeatedly quoted by other lawyers. Our paper was used in global corporate law texts in Asia and was including in required reading for a business valuators program in Canada.
This paper begins by discussing the various sources of shareholder rights, including corporate statutes, articles of incorporation and by-laws, and shareholder agreements. Although securities laws will also be briefly mentioned, the securities regime is exceedingly complex and it is beyond the scope of this paper to address it in detail. We then discuss the remedies provided by corporate statute to shareholders who are aggrieved by the manner in which management conducts the business and affairs of the corporation, including voting, court-ordered meetings, derivative actions, the oppression remedy, investigations, appraisals and court-ordered winding-up on the “just and equitable principle”.
The oppression remedy, widely acknowledged to be the most powerful weapon in the shareholder's arsenal of remedies, focusses on two particular points: the broad definition of "complainant" under corporate statutes, and the manner in which the courts have defined the reasonable and legitimate expectations of shareholders and other "proper persons" under the oppression remedy.
The authors are members of ELLYN LAW LLP Canadian Business Litigation & Arbitration Lawyers, a Toronto law firm, specializing in dispute resolution for small and medium businesses and their shareholders. The firm is a member of the International Network of Boutique Law Firms (www.inblf.com), a prestige network of specialized law firms who have demonstrated pre-eminence their practice fields. Ellyn Law LLP is INBLF’s designated Toronto firm for shareholder disputes and arbitration. Igor Ellyn, QC is the Chair of INBLF's Business Litigation & Arbitration Practice Group.
In the seven years since this paper was first published, ELLYN LAW LLP has acted on dozens of complex shareholder disputes. Despite our long experience in this area, each case brings its shares of new twists and surprises. In each revision of this paper, we have added the benefits of our added experiences.
In late September, the Federal Trade Commission announced what is likely the most substantial auto dealer enforcement action in the agency’s history. While most of the FTC’s earlier cases have focused solely on dealer advertising, this action against 9 California dealerships alleges over a dozen different types of violations. And unlike previous cases where there were no initial monetary penalties, this time it looks like they’re seeking massive financial consequences for the dealers involved.
In this informative presentation we’ll examine each of the FTC’s latest claims in detail and discuss best practices on how your dealership can avoid being targeted by federal and state regulators. The game is changing and it pays to be prepared.
This document provides a quiz on moral choices facing employees, including questions on employer/employee relations, conflicts of interest, insider trading, trade secrets, the Foreign Corrupt Practices Act, whistleblowing, and gifts in business situations. It contains multiple choice, true/false, short answer, and essay questions on these topics.
1Legal Issues for Managers 2007GIRLecture 9(Week 10)M.docxfelicidaddinwoodie
1
Legal Issues for Managers: 2007GIR
Lecture 9
(Week 10)
Module 3 (Part 2):
The Law of Business Associations
Law of Agency &
Law of Partnership
1
Administration
Ensure that you check the announcements on [email protected] ([email protected]) and your marks in My Marks.
You should now have your Mid-Semester Exam marks available in My Marks. If you want genuine feedback (not simply checking your grade as they have been scanned), you can see your exam papers this week during the times provided on [email protected] course site. A time will also be made available for the Deferred Mid-Semester Exams when we have received them back from scanning.
A notice about the time, date & place of the Deferred Mid-Semester Exam is now available on the course website.
IF you want to do well on the FINAL EXAM, in addition to making a genuine effort on the ASSIGNMENT continue practising your ILACs before you attend your seminars, add a few notes to your answers, download the seminar slides and try to attempt the answer again on your own. If you did not have a satisfactory answer, see your tutor in consultation and bring along your ILAC homework attempts. This is the most effective way to prepare for the Final Exam.
2
2
Recap of Last Week
The Law of Companies/Corporations
Summary
The essential characteristics of a ‘company’ and why they are important.
The different types of business structures available, in particular companies, and when can they be used to meet the needs of business & society.
The main duties imposed upon the directors of a company.
The concepts of insolvency and insider trading.
The way companies can be wound-up.
Quick Question:
The Corporations Act 2001 (Cth) prohibits trading in shares with the advantage of information that is not publicly available. This offence is also known as …………………………… and is prohibited by section ..........
3
3
Business Structures
BUSINESS
STRUCTURES
Sole
Trader
Partnership
Joint
Venture
Incorporated
Associations
Trust
Company
Proprietary
Company
Public
Company
Large
Small
4
Seek the advice of a good accountant & lawyer when considering what form of business structure you may want to set-up. The main consideration should be liability – Not taxation. Thus, this message applies to today’s lecture and next weeks! Strategic planning is the key to business success.
44% of businesses fail in the first 3 years
Failing to plan, is planning to fail!
See separate mind-map on the types of companies in those lecture slides when available
http://www.business.gov.au/business- ...
13 Startup Company Pitfalls - and How to Avoid Them.PPTXMax Masinter
The document outlines 13 common legal pitfalls that startup companies face and how to avoid them. Some of the key pitfalls discussed include choosing the wrong business entity, failing to protect founders through buy-sell agreements, pursuing the wrong sources of funding, and not establishing proper intellectual property and contract strategies. The presentation provides advice on selecting the optimal entity structure, implementing founder exit plans, evaluating funding options, and using tools like patents, confidentiality agreements, employment contracts, and equity compensation to mitigate risks for startups.
CBA Presentation: Common Legal Mistakes Small Businesses Make And How To Avoi...John Watkins
May 2009 Presentation for Chamblee Business Association on common legal mistakes that small businesses make and possible ways to avoid them. This presentation is the result of seeing mistakes made over and over again. This presentation is available as a podcast (slides and audio) at www.ctflegal.blip.tv
Know Recovery of dues remedies under Laws of India and what are the Pre-Litigation Techniques and more on Recovery to avoid any Outstanding being treated as Bad-Debts
This document provides an overview of key provisions that should be considered when negotiating vendor contracts and consulting agreements. It discusses 20 essential elements that should be addressed in vendor contracts, including the scope of services, standards of performance, compensation, intellectual property ownership, confidentiality, insurance, indemnification, and dispute resolution. It also outlines 7 considerations for consulting agreements, such as defining the services, specifying an independent contractor relationship, and ensuring confidentiality. The document emphasizes having legal counsel review agreements to avoid potential issues in the future.
New Contract Opportunities Through Teaming AgreementsRobert Cogan
A smaller defense company can create new opportunities by teaming with larger prime contractors. But the company must know how to make the opportunity work and how to avoid the pitfalls
The document discusses various legal agreements and provisions that are important for businesses to address, including operating agreements, buy-sell agreements, confidentiality agreements, commercial leases, purchasing real estate, and protecting trade secrets. It emphasizes getting contracts in writing and properly executing them to protect business owners and assets. Specific types of agreements covered include LLC operating agreements, buy-sell agreements, work for hire contracts, and compliance with home solicitation sales acts.
This document discusses elements that should be included in contracts for custom software development projects with fixed prices. It recommends including: definitions, parties involved, documents incorporated like requirements specifications, what will be delivered, ownership of intellectual property rights, and procedures for handling changes to requirements. The contract aims to anticipate potential issues, define responsibilities clearly, and provide a framework for resolving disputes. Careful drafting of contracts is important for protecting all parties and avoiding problems down the road.
This document discusses the importance of business continuation planning through a buy-sell agreement to protect a business in the event of the owner's death, disability, or retirement. It outlines the key reasons to have a buy-sell agreement, including establishing the business's value, ensuring a smooth transition of ownership, and providing funds to pay estate taxes. The document also describes different types of buy-sell agreements and funding options, and stresses that a properly drafted agreement can save thousands in taxes and litigation costs.
This document discusses the importance of business continuation planning through a buy-sell agreement to protect a business in the event of the owner's death, disability, or retirement. It outlines the key benefits of a buy-sell agreement such as pre-determining ownership transfer, setting a fair purchase price, and providing funds to pay estate taxes. The document also notes that without a proper succession plan, a business could face problems like lost customers or disagreements that threaten the business's survival.
The document discusses key issues that contracts need to address to be legally binding. It notes that contracts create the framework for business relationships but poorly written contracts can leave parties exposed legally and financially. The document then lists 9 questions for reviewing contracts to ensure they are enforceable, including whether the contract is fair, involved any misrepresentation or coercion during negotiations, contains errors, is possible to enforce given changing circumstances, all parties understand the terms, involved any failure to disclose important information, subjected any parties to undue pressure to sign, or requires breaching public policy.
This document discusses key considerations for contract review including confidentiality, governing law, indemnification, insurance, payment terms, warranties, and record retention. It emphasizes the importance of removing strict confidentiality clauses, having New York law and venue, ensuring mutual indemnification, and allowing the hospital to share information with consultants and lawyers. Vendors may want to restrict these areas but it is fair for the hospital to request them.
This document summarizes key findings from a research paper by Accuracy on cross-border M&A disputes. Some of the main points include:
- 57% of disputes analyzed were heard through private arbitration rather than traditional litigation.
- Almost a third of claims were for €10 million or less, while 15% were over €1 billion. Dispute amounts do not necessarily correlate with complexity.
- The majority of disputes arise due to surprises for the buyer after deal closing, such as unexpected costs or warranty breaches.
- Deals using a "locked box" purchase price mechanism, where the price does not change after signing, see far fewer disputes than deals using purchase price adjustments.
- Volatility in
Presentation slides from Brightline Lawyers accompanying a discussion with Brisbane web design and technology professionals concerning client engagement terms
Advantage Talk - Need to Know (Contracts)Robert Munday
This document discusses the importance of understanding insurance requirements in contracts. It notes that contracts often require businesses to carry specific types and levels of insurance like professional indemnity, public and products liability, pollution liability, and cyber insurance. It advises readers to consult their insurance advisor before signing any contract to ensure they can meet the insurance specifications and requirements. It provides an example of a client who was able to sign a contract by working with their advisor to negotiate an increase in their insurance limits. The document stresses the importance of addressing insurance requirements proactively to avoid issues in the event of a claim.
Protecting Confidential Information When an Employee LeavesANTHONY PALAZZO
The document discusses protecting confidential information when an employee leaves a company. It outlines how non-disclosure agreements (NDAs) and non-compete clauses are intended to restrict sharing confidential information and working for competitors after leaving. However, the law regarding these is complex and varies by state. Courts may enforce some portions of non-competes by modifying language but not others based on reasonableness standards of geographic area, duration, and balancing employer and employee interests. Protecting trade secrets ultimately depends more on building stable employment, paying competitive compensation, and showing respect to employees than relying on legal agreements alone.
10 Small Bus and New Mistakes Article, August 2015, BNA Bloomberg FCRRichard D. Lieberman
1. The document discusses ten big mistakes commonly made by small businesses and new government contractors. It explains that the differences between commercial and federal government contracting often account for misunderstandings.
2. Federal contracting has a much more extensive statutory and regulatory framework compared to commercial contracts. It also has different types of contracts like cost-reimbursement. Government contracts also generally require more formality with written documents and competition.
3. The authority of agents, auditing practices, socioeconomic requirements, contract modifications, consideration requirements, and termination for convenience differ significantly between commercial and government contracting. Understanding these differences is important to avoid common mistakes.
5. Thinking There Will Be No Problems Weather delays, employees are quitting, computers break down, software is full of bugs, governments and unions have new bright ideas that ruin the business, and more and more will happen. It always does 5 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
6. Not Investigating and Understanding Future Business Partners 6 TOP MISTAKES IN CONTRACTS Perhaps the most fundamental mistake made by businesses is failing to adequately investigate the entities with whom a business intends to enter a contractual relationship. While most companies analyze whether a proposed deal is financially advantageous, a surprising number fail to adequately study their proposed business partners. It is important because it provides warning signs about the partner, the likelihood that obligations will be met and whether litigation is likely if disputes arise. Prima FACIE / Law Firm ® Corporate Legal Counseling
7. Failing to accurately identify the parties to the contract 7 TOP MISTAKES IN CONTRACTS The contractshouldidentifytheparties as completely as possible. In thecaseofcorporations or otherbusinessentities, it is important to verifythecapacityofthecontractingpartyto bindthecorporation to thecontract Prima FACIE / Law Firm ® Corporate Legal Counseling
8. Hasty, Inadequate or Non-Existent Due Diligence 8 TOP MISTAKES IN CONTRACTS The next step should be to conduct thorough due diligence. Often businesses are so eager to "do the deal" that they perform inadequate due diligence, or not at all. While companies elect to take "calculated risks," there are real risks to circumventing due diligence. If a deal appears to be too good to be true, the need for due diligence is even greater. Prima FACIE / Law Firm ® Corporate Legal Counseling
9. Not Writing the First Draft Negotiations start from the first draft. BE THERE. It might seem wise to let the other party write the first draft – as a courtesy – but this will work against you in the end. 9 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
10. Ambiguous (Payment) Terms Trust should never come into play when talking about business contracts. Make sure that the contract explicitly states the exact payment terms with no room left for ambiguity 10 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
11. OPPORTUNITY DEVELOPMENT AND MARKET RESEARCH TELEMARKETING STATEMENT OF WORK Oracle Czech s.r.o. - Linea Directa d.o.o. Nondisclosure & Security Upon completion of the services, Provider will destroy the list, related materials and all copies thereof (hard copy, electronic or otherwise) in its possession in a manner that ensures that these materials cannot be recreated or used by commonly encountered, usualcommercialsoftware. 11 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
12. Agreeing to Overly Restrictive Covenants Too restrictive covenants should be avoided if at all possible. If they are unavoidable, they should be reasonable in terms of time and they SHOULD BE MUTUAL. Such clauses either should not extend beyond the termination of the contract or should not apply if the contract is terminated for cause 12 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
13. Overly Restrictive Covenants INTELLECTUAL PROPERTY RIGHTS LINEA DIRECTA (LD) represents and warrants that the Marketing Services, and all parts thereof, provided under this Agreement do not infringe any patent, copyright, trademark, trade secret or other proprietary right of any person or entity (“Proprietary Interest”).LDagrees to defend, at its own expense, any claim or suit against “CLIENT” and to pay all awards anddamages of the foregoing arising out of such suits or claims, in respect of any infringement, misuse or misappropriation of any Proprietary Interest arising out of or related to this Agreement of any Marketing Service provided hereunder, provided “CLIENT” notifies LD of any such claim or suit.“CLIENT” shall be represented by its own counsel at LD’s expense. 13 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
14. Overly Restrictive Covenants INTELLECTUAL PROPERTY RIGHTS If any Marketing Service or part of it thereof is reasonably claimed to constitute an infringement of the IP or other rights of third parties, or if “CLIENT“ became the subject of a claim of infringement, LDshall, at its own discretion either: (a). Procure for “CLIENT”the right to continue usage; or (b). Replace or modify the Marketing Service so that it becomes non-infringing while continuing to meet specifications. The previous section states LD 's entire liability and “CLIENT's”remedy for infringement.In the event, that either of above solutions is reasonably adequate, each party may declare that a Force Majeure Event has occurred. 14 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
15. Committing to Long-Term Contracts Contract terms should be limited to one or two years and the parties should retain the right to terminate the contract if the other party fails to perform or if one reasonably determines that continuation of the contract is no longer in his best interest 15 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
16. Time is of the Essence In business it is usually so, but it is not all about Time Value of Money. The »Time is of the Essence« clause in transactions means that if time limits are not strictly complied with, you can lose legal rights or have rights of the other party exercised against you. 16 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
17. Not knowing what you want If you don't know what you want, you might not like what you get. Also, if you change your mind and change the goals, the contract and price will change. (Hint: it won't get cheaper) Know clearly what you want. 17 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
18. Entering a Contract Not Written or Approved by a Lawyer The temptation is greater when contracts "seem" simple. However, the rule that "THINGS ARE RARELY AS SIMPLE AS THEY SEEM" applies here. Having a lawyer to briefly review a contract is an investment that more than pays for itself and, if nothing else, allows a company to identify the risks of proceeding without greater attorney involvement. Where companies enter the same type of transaction over and over again, the use of form-template contracts is appropriate as long as they are drafted or approved by a lawyer and the form is occasionally reviewed in light of new laws and past performance. If you don't know what you want, you might not like what you get. Also, if you change your mind and change the goals, the contract - and price - will change. (Hint: it won't get cheaper) Know clearly what you want. 18 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
19. No Provisions Relating to Defaults, Opportunities to Cure and Termination Companies are sometimes reluctant to raise these issues, because they worry that their partners will have second thoughts. However, these provisions are important ways to PROMOTE PERFORMANCE and AVOID LITIGATION. If notice of breaches and opportunities to cure are required, parties that might otherwise litigate are forced to attempt to work out their differences. Another important benefit of these provisions is that they require alleged contractual breaches to be raised when they first arise and not after problems spread and damages escalate. If you don't know what you want, you might not like what you get. Also, if you change your mind and change the goals, the contract - and price - will change. (Hint: it won't get cheaper) Know clearly what you want. 19 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
20. Failing to be All-Inclusive You should dot every i and cross every t. Not only should the legal terms be covered, but also the specific requirements of both parties. Leave no stone unturned, and your interests will always be protected. 20 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
21. Assumptions Assumptions are particularly harmful in contracts. If you are purchasing equipment, do not assume that the other party will deliver the equipment with all related software or attachments. Spell it out explicitly. Don't assume the other party will know that if you receive the goods late, you will lose big money. Put a “Time is of the Essence“ clause in your agreement 21 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
22. Failing to Negotiate Everything is negotiable. EVERYTHING. Even the things the other party tells you are not negotiable are negotiable. Even preprinted forms are negotiable. It means that you discuss, argue, deliberate, and ultimately agree upon all terms of the agreement. Not only are you ALLOWED to do this, you SHOULD. Too many people fail to negotiate unfavorable terms in contracts. 22 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
23. Failing to Understand If you do not understand a provision, find out what it means. Demand explanations, seek for answers. AND DO IT BEFORE SIGNING 23 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
24. Lack of Deadlines And Penalties When contracting for services it is critical that you include timelines for completion of the work. It's one thing to say "Work to be completed by May 2nd," but better to add, “EUR 300 per day to be deducted from the contract price for each day the job is unfinished beyond May 2nd." That's what I call a motivational clause. 24 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
25. Not Including All Deal Terms In The Agreement Include items upon which you relied when entering into the agreement. What is your reason for entering into the agreement ? Did the party state that he has been in business a long time or has a particular type of expertise in a particular field? What did the other person agree that he would do for you and what did you agree to do in return? 25 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
26. Leaving the Negotiation Process Strictly to Lawyers Lawyers will eliminate onerous clauses, but are often not aware of industry standards. Have the contract reviewed by both a legal professional and an industry professional. Having a legal professional draft or review a contract is necessary, but not always sufficient to ensure a solid contract. 26 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
27. Failing to Adequately Define How or When The Contract Terminates A contract should specify the length of time of the contract – either terminating on a stated expiration date or on completion of performance. Litigation may be avoided if the parties are clear about the grounds for termination 27 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
28. Contract Language/s & Translations If the contract exists in several language versions, only one version of the contract, is a binding contract. All other language versions are translations for conveniance only and have no legal binding power 28 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
29. Leaving Out Boilerplate Provisions These are clauses that protect the rights and privileges of the parties, like Notice Provisions, Assignment, Integration, Consent to jurisdiction and Forum selection, Modification of Agreements… 29 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
30. No Paraph on all Pages before Signing Puting a paraph on each numbered page of the contract, declares that negotiations are concluded but also prevents the integrity of the substance of the contract untill the signing - closing un 30 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
31. Not Signing the Contract as the Last Party It is the best solution if the contract is signed simoultaneously by both or all of the parties. If this is not the case, never be the first party to sign, be the last, so nothing can be changed or amended in the contract with your signature already on. un 31 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
32. Using Generic, One-Size-Fits-All Contracts Popular in Sales, but dangerous if not used properly. The fact is, there are no One-Size-Fits-All business situations in real life. Use with caution. Have them checked by the lawyer anyway. un 32 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
33. Rushing Through the Agreement to Closing Businesses are often in a hurry to get deals done. But, it is never a good idea to negotiate and execute an agreement hastily. The results could be unfavorable terms, ambiguance language or even an unenforceable contract un 33 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
34. No Third-Party Escrow Servicing (Escrow Account) Using an escrow account or agent is well worth the small cost. All deposits and down payments should be deposited on escrow account and not to the other party, whenever possible 34 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
35. Failing to Define Rights and Obligations That Are Assignable f You should include an assignment clause, so you can transfer the rights to third parties without seeking consent of the other party. (Contract, not claims in commercial contracts) un 35 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
36. Failing to Include a “No Set-Off" Clause If Without a “No Set-Off” clause, you open the back door for the other party to acquire your outstanding debt (with discount) and set it off against your claims. You’ll never see any money, no Cash Flow, just Paper Flow… un 36 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
37. Failing to adequately state the method for resolving disputes Arbitration clause is often drafted too narrowly; thereby, excluding certain types of disputes from arbitration. Other essential elements include the location of arbitration, the governing law… un 37 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
38. Failing to Include a Choice of Law Clause If Conflicts of law issues arise when the parties are residents of different jurisdictions, or obligations are to be performed in more than one. It can be resolved in advance with the proper choice of law provision. Without this clause, the law of the place where the contract was made, or services were performed will apply. un 38 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
39. Failing to include a Contract Effective Date If It is important that the contract states when the contract is effective, for purposes of determining obligations and the time for performance un 39 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
40. Failing to determine What Happens After Termination? If The contract must spell out obligations of both parties, during and AFTER the life of the contract. Some provisions SURVIVE TERMINATION (Reps & Warranties, Non Disclosure…) un 40 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
41. Have You Ever Actually Read Your Entire Contract? The contract is the key to your obligations and responsibilities. How many contractors actually read the entire contract before beginning performance? Most read the Statement of Work (SOW) and proceede, but there are other critical sections in the General Agreement that are equally or more important . If un 41 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
42. Follow the Contract not verbal Promises and Directions Only the written word is binding. Contractors should learn to ignore diplomatically any verbal advice from any business partner or government official - no matter how convincing. The written contract always defines your duties and responsibilities. Reliance upon verbal advice is at your own risk. . If un 42 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
43. Establishing Internal Procedures and Protocols to Insure Contractual Compliance and Avoid Disputes If The final and often most serious mistake that businesses make is that they merely file a contract in a cabinet and then proceed to "do business.“ Companies too often ignore the contract and only consult it when problems arise. By failing to establish procedures to monitor performance, companies may breach their contracts or may waive the right to insist that their business partners fulfill their obligations. un 43 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
44. Protocols to Insure Monitoring of Executed Contracts If Executed contracts should be forwarded to the managers and employees responsible for performance. Individuals should be assigned to insure that business partners fulfill their responsibilities. These people should understand the agreement . If personnel changes occur, companies must have procedures to insure that the new managers or employees are educated about the contract. Companies should verify that its managers and employees are fulfilling the requirements of the contract and regularly CHECK TO INSURE THAT PROTOCOLS ARE FOLLOWED. un 44 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
45. Tips & Warnings If TAKE YOUR TIME to read the contract. If you don't understand it, ASK A LAWYER to look it over. Always KEEP A COPY of the contract. DO NOT SIGN anything that is BLANK. Make sure everything is filled out before signing your signature. Read the DEFINITIONS and checkATTACHMENTS un 45 TOP MISTAKES IN CONTRACTS Prima FACIE / Law Firm ® Corporate Legal Counseling
Editor's Notes
COUP D’ETAT ?
The Monolith Concept , DUI USA & EUROPE,
MACY’S ACQUISITION OF TIFFANY, DAIMLER BENZ – CHRYSLER,
BMW IN 1998 WINS TRADEMARK RR FOR 40 MIO POUNDS, VW FAILS FOR 430 MIO – TERMINATION ON CHANGE OF OWNERSHIP CLAUSE MISSED IN LICENCE AGREEMENT
UNLESS PARTIES INTENTIONS ARE OF GREATER CONCERN
CONTRACT CAUSA ISSUES
CHANGED INTEREST RATE IN LOAN CONTRACT
WHICH REAL ESTATE IS SAFER TU BUY – IN THE RECORDS OR NOT ?
CLAIMS MAY BE ASSIGNED IN SPITE OF NO ASSIG. CLAUSE IN COMMERCIAL CONTRACTS !