Government & Politics

Love Me Tender: Part 2 – Winning Your Next Tender Response

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Pubic Procurement Winning Tender Response

What a company writes in a tender response can have a real bearing on how successful it is. Its tender response can also create unintended legal liability. Government departments, local authorities and private companies can all purchase goods, services or works through a competitive tender process. In Part 1 I looked at how an organisation can help protect itself […]

Contract Law

Entire agreement clause pitfalls: supplier beware

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Contract entire agreement clause

An entire agreement clause, including a no-reliance provision, can protect a party where the other parties tries to rely on a pre-contractual statement that it alleges the first party made orally or which is set out in other documents. What is a pre-contractual representation? In IT and telecommunications deals a pre-contractual representation is generally an oral or a written statement that […]

Contract Law

Locking Horns: The Differences Between Jurisdiction and Governing Law

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Differences between jurisdiction and governing law

Number 1 Takeaway: Jurisdiction and governing law clauses address different things Jurisdiction and governing law are different. Because of the differences between jurisdiction and governing law, parties should draft them clearly and ideally in separate clauses in a contract. But what exactly are the differences between jurisdiction and governing law clauses? In this article I will […]

Contract Law

Service Levels: Part 2 – Drafting Service Levels / SLAs Effectively

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Drafting Service Levels That Work Drafting service levels and service level agreements (SLAs) that are appropriate, and managing the service levels correctly, provides a number of benefits for both parties to a commercial IT contract or outsourcing contract. As discussed in my previous article, service levels provide a customer with a way to measure the success of the delivery of […]

Contract Law

Outsourcing Contract Objectives Clause: Targeting Perfection

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Outsourcing contract objectives clause? Have you ever seen an objectives clause like this near the beginning of an outsourcing contract or a master services contract? “The customer’s objectives in respect of this agreement are for the supplier to: (a) achieve optimum value for money for the customer; (b) minimise any ongoing financial liabilities and risk […]

Contract Law

Incentives & Contracts: Part 2 – Marco Polo, KPIs & Bonus Incentive Schemes

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Let me ask you a question: what does Marco Polo and a sophisticated customer of technology services in the 21st century have in common? The answer: they both know that in business, whether it is moving a camel train across the deserts of Asia, or ensuring that a supplier provides a quality IT project on […]

Contract Law

Incentives & Contracts: Part 1 – Liquidated Damages & Late Delivery

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Liquidated damages

Liqduiated damages: incentives and motivation in IT contracts What do liquidated damages have to do with incentives? All economists love to talk about incentives. Incentives are simply a way of explaining why people do what they do. For example, why do people (usually) pay their taxes? In other words what are the incentives for individuals […]

Contract Law

The Uncertain Road: Consequential Loss in Australia

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consequential loss

A contract is simply a way for parties to record how they agree to assign risk in a commercial transaction. Commercial contracts often contain clauses where a party (usually the supplier) seeks to: limit its liability to compensate another party for losses up to a specified amount; and/or exclude any requirement for a party to […]

Contract Law

Force majeure clause: Why not having one could be the end of the world

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force majeure clause

Force majeure clause A force majeure clause sounds painful…and French. A bit like a guillotine. But before sign your next services contract there are a few important contractual principles you should be aware of to ensure that if a catastrophic event happens you will not be shouting “off with his head” to the other party’s […]

Contract Law

Browse wrap agreement: Top 7 secrets

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browse wrap agreement

Browse wrap agreement A properly drafted browse wrap agreement can help a business ensure its website online terms and conditions are enforceable. In 2014 many businesses operate and transact solely online. It is therefore becoming extremely common for websites to use electronic terms and conditions of use and sale rather than written contracts. However, courts have […]