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Drafting & Negotiating Complex Commercial Agreements
Supply chain disruptions have taken center stage in the news cycle in the wake of the COVID-19 pandemic, bringing commercial agreements into the international spotlight. In this volatile commercial environment, attorneys have a unique opportunity to bring order to chaos by providing valuable legal insight into their clients’ procurement and supply chain relationships. This article identifies several key considerations for drafting and negotiating complex commercial agreements specifically through the lens of potential supply chain issues. For simplicity’s sake, this article focuses primarily on customers and suppliers, but attorneys should also pay close attention to the various other parties in the overall supply chain network, such as raw materials providers, distributors, resellers, and logistics and warehousing providers. Generally, the party purchasing goods or services is referred to as the “customer” and the party providing goods or services is referred to as the “supplier” throughout this article, but other defined terms may be a better fit for different types of agreements (e.g., “Client” or “Purchaser” may be used for the party purchasing goods or services, and “Service Provider” or “Seller” may be used for the party providing goods or services). This article does not contain an exhaustive list of provisions that should be included in a commercial agreement. Complex commercial agreements are just that – complex! – and should be specifically tailored to the business arrangement between the parties. However, the standard elements addressed in this article should generally apply across a variety of types of agreements.
When is a Forfeiture Clause a Non-Compete?
For Texas lawyers who draft non-competes for employers, there are two essential things to remember. First, putting the non-compete in the form of a forfeiture clause won’t necessarily avoid the requirements of the non-compete statute. Second, regardless of what you call it, it is unlikely that a Texas court will enforce a forfeiture clause that functions as an unreasonably broad non-compete. So you might as well make the scope of the discouraged competition reasonable.
It's Not Safe Out There: Consideration of Contract Terms that Avoid or Limit Liability and Legal Expense
This is the PowerPoint slide deck for the presentation.
Contract Drafting
This article is a short but comprehensive guide into all aspects of contract drafting.
How To Interpret a Complex Business Contract
The purpose of this paper is to suggest a methodology for interpreting a complex business contract (or any contract, for that matter) by interpreting it as a whole, rather than solely by seizing upon certain language within the contract. This paper assumes that the reader has from law school and legal practice become familiar with basic principles of contract formation, drafting and interpretation. An easy-to-read and excellent resource book on these topics is Charles M. Fox, WORKING WITH CONTRACTS: WHAT LAW SCHOOL DOESN’T TEACH YOU (Practicing Law Institute (2nd ed. 2008), available inexpensively at Amazon.com and from numerous other sources. The author illustrates the process by reference to a hypothetical, complex business transaction in which an existing contract places many restrictions on the ability of a party to that contract to do other transactions (directly or through its subsidiaries), including the hypothetical transaction. The task is to identify the salient contractual provisions in the existing, restrictive contract, interpret it as a whole, and reach conclusions regarding the intent of the parties to the restrictive contract. The purpose of the task is to determine whether or not a proposed new transaction would be permitted.