Anatomy of a Contract Northeastern University Brown Bag Lunch Seminar July 2010

Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013WELCOME TO CONTRACTS1

Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Four Parts to Todays SeminarCurrent Contract Review ProcessSteps You Should Take to Speed Up ProcessUnderstand the PitfallsUnderstand the Pressure Points2Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Current Contract Review ProcessCover Sheet, Draft Copy, COI*Send hard copy to Office of General Counsel (OGC)Sharepoint notices to youAdd as many people to the Sharepoint notifications list as you want. * If necessary please email insurance@neu.edu and provide: your name, contact number, purpose of the request and/or a brief description of the issue and applicable dates and amounts involved. Risk management and insurance requests submitted through the email address will be responded to within 24 48 hours of receipt.3Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Current Contract Review Process (contd)Standard time to review 2 weeksMajority of contracts were turned around in less than 4 daysNegotiation, drafting, push out timeframe4 Guaranteed Notices from Sharepoint(i) We got it(ii)We sent it for signature(iii)We sent it back to the department(iv) It's signed and ready to be picked up(v)We need more information(vi)It's under negotiations

4Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Current Contract Review Process (contd)Most Approvals Sent to Treasurer or Provosts OfficeSharepoint Message: Contract ready for PickupNo Changes after NU signsPickup at 95% of time at 490 Renaissance Park Other partys signatureDepartment keeps a copy; OGC does not.

5Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Steps You Should TakeKnow the Other Party/Due DiligenceUse Templates whenever possibleTheyre Available From OGC Webpage*Dept/College-specific templates not on OGC webpageSend the coversheet, completed and signedDo not skip questionsInclude Copy of any previous agreement with the other partyInclude necessary Certificate of Insurance (COI)Consider Master or Blanket Forms of AgreementFor repeat vendors, transactions Know the Pitfalls and Pressure Points* http://www.northeastern.edu/general-counsel/transactional/index.html6Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Steps You Should Take (contd)Complete the Template AccuratelyNU is always the contracting partyType the legal name of the other party State the services/work to be performedState the maximum amount to be paid for the workIs it an hourly, weekly or flat rate?State on the cover sheet changes to templateDo not sign the contractComplete or delete bracketed language

7Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Steps You Should Take (contd)Note: International Academic ContractsFocused on education, research or serviceSend to Vice Provost for Global RelationsIf they are sent directly to OGC, we will send them back.8Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Steps You Should Take (contd)Which Template Should I Use? (Call us if unsure)Professional Services Agreement (Long/Short Forms)Use when buying expertise/knowledgeUse when buying whats in someones headUsually project related software developers, consultants, etc.Service Provider AgreementUse when buying whats in someones feet or back Usually a one-time eventCaterers, lighting, staging, security, etc.

9Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013

Steps You Should Take (contd)Which Template Should I Use?Non-Disclosure AgreementConfidentiality AgreementTypically Used When in Confidential TalksForerunner to other AgreementsPerformer AgreementUse When Buying an Performance of Some KindSingers, dancers, speakers, readers, musicians, etc.10Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Steps You Should Take (contd)Which Template Should I Use?Talent Agency AgreementUsed for Use of Student Likeness in University PublicationsVideographer/Photographer AgreementUsed When Hiring for Such ServicesFor assistance with issues related to photo, video, or other creative or multimedia projects, please consult the Photo/Video toolkit (http://www.northeastern.edu/general-counsel/transactional/toolkit.html)

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Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013

Steps You Should Take (contd)Which Template Should I Use?Student Confidentiality AgreementUsed for Student Workers Who Have Access to NU InformationLicense Agreement Addendum (Not on OGC Website)Used with Agreements to License SoftwarePSA Agreement Addendum (Not on OGC Website)Used with non-template Agreements for Professional Service12Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Steps You Should TakeNot a Template Form + Significant Transaction = Call OGC before 1st Meeting w/ other partyDeal Meeting, Deal Lawyers PresentWere FREE!!Know the Pitfalls. Know the Pressure Points.13Pitfalls To AvoidNot Using OGC Templates, when applicableUsing the Wrong TemplateNot Completing the Template Completely & CorrectlyInviting OGC Late to the DanceNot Including Previous Agreement COI WeaknessesNo COI submitted, Non-compliant, Out-of-Date, NU Not included as Additional InsuredNo SSNs on Contracts 14Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013NU Pressure Points (Non-templates)Signed contract is required to be in place before work beginsNegotiation typically requiredUnderstanding what causes heartburn 15Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013NU Pressure Points (Non-templates)WarrantiesConfidentialityWork Product/Work for Hire/Intellectual PropertyDispute Resolution and Governing LawTerminationUse of NUs NameAmendments16Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013NU Pressure Points (Non-templates)WarrantiesThe Concept: This stuff is their stuff to sell or license to us. We buy, license, etc., only from the owner or authorized dealer.We dont like disclaimers of warranties.Common warranties we need from the other party (not an exhaustive list):Work will be done according to specificationsIt has the IP rights necessary to license themIt has the requisite skills and experienceIt will provide a Supervised, Clinical Education ExperienceIt will comply with all laws applicable to the transactions17Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Pressure Points (Non-templates)IndemnityThe Concept: If NU gets sued by a Third Party because of the other partys acts/omissions, other party must pay NU.Typical indemnities we seek (all):For breach of the agreement by other partyFor negligence/bad behavior of other partyFor breach of confidentiality by other party.University typically does NOT agree to indemnify anyone.NU Board authorization required for indemnity.

18Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Pressure Points (Non-templates)ConfidentialityThe Concept: Safeguard and defend confidential information from unauthorized access, use or disclosure.Substantial Financial Risk & Reputation Risk among othersMA Privacy Law, FERPA, HIPAA, Other States lawsEU Privacy Directives

19Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Pressure Points (Non-templates)Work Product/Work for Hire/Intellectual PropertyThe Concept: If the other party is doing work for NU and NU has paid for the work, the work entirely belongs to NU.Typically arises in Professional Services Agreements and License AgreementsThats NU Policy and standard practice at other places tooSome variations are agreed upon from time to time

20Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Pressure Points (Non-templates)Limits of LiabilityThe Concept: We want the other party to stand behind its product/work.We dont like unreasonable limits of liability.If NU doesnt cause the harm, it should NOT have to pay for it.Others always try to exclude consequential damages.Not necessarily a direct correlation between the dollar value of the contract and amount of potential liability.NU resources are for its Education and Research missions. NU doesnt bear the other partys financial risk.A SOL acts the same way and we dont like those either.

21Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Pressure Points (Non-templates)Governing Law99% of time: MassachusettsOther times: silent, court of competent jurisdiction, home court advantageInternational contracts: this is always an issue.Jurisdiction/VenueWe dont usually agree to appear any where but MA.

22Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Pressure Points (Non-templates)TerminationEvery contract needs an exit strategy.Terminate for convenience (with or without cause)Usually terminate upon ___ days prior written noticeAmendments to AgreementsMust be in writingMust be signed by both partiesNot oralNot automatic23Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Pressure Points (Non-templates)Use of NU Name and IPHighly controlledUse rarely permittedAlways required: prior, written approval in each case24Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Pressure Points (Non-templates)How are Pressure Points Managed?Communication is key! Involves all affected parties and their attorneysAlways depends on the circumstances. For example, Number of changes necessaryTypes of changes necessaryResolution typically involves negotiation with other partyYou work with OGC to resolve issues with other partiesYour level of involvement varies depending on circumstances

25Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013Questions?

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26Step by Step for Beginners: How to Walk Through the Contract Review ProcessOctober 30, 2013These materials are the sole property of Northeastern University. The information contained in these materials is for the informational and educational use of members of the Northeastern University community only. These materials are not intended as and cannot be construed as individual legal advice on any matter or for any purpose.

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