Manufacturing and Supply Agreements: Drafting High-Risk Provisions and Navigating "Battle of the Forms" Issues

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, February 20, 2018

Recorded event now available

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Program Materials

This CLE webinar will provide insight into identifying, drafting and negotiating complex, high risk provisions in manufacturing and supply agreements which include warranty, intellectual property, tooling, indemnity, limitations of liabilities, forecasts, price adjustments, change orders and more. In addition, our speakers will guide counsel for both suppliers and customers regarding the “Battle of the Forms” — when the parties exchange forms and a master supply agreement is not negotiated. Either situation may be a complex undertaking, often resulting in unanticipated consequences, mistakes, disputes and contractual breakdowns.

Description

The frequent use of boilerplate clauses and the parties’ failure to follow the procedures of the clauses give rise to additional complications.

A significant percentage of product purchases/ sales are accomplished without a negotiated master supply agreement. The parties exchange multiple legal documents, such as requests for quotes, proposals, purchase orders, and acknowledgements, creating the “Battle of the Forms“ and confusion as to which terms prevail.

Our speakers, who are experienced in negotiating manufacturing and supply agreements, discuss best practices for drafting, negotiating, and executing these contracts. They will discuss specific high-risk clauses that should be carefully considered and negotiated to mitigate risk as well as approaches to dealing with the Battle of the Forms.

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Outline

  1. The Battle of the Forms
    1. When should a master agreement be used?
    2. Best practices when a master agreement is not in place, including what provisions should always be in purchase orders
    3. How to deal with the introduction of “additional or different” terms after a master supply agreement has been executed
  2. Drafting and negotiating high-risk provisions in manufacturing and supply contracts
    1. Forecasting and Inventory Liability and how sellers can minimize risk
    2. Pricing: Adjustments, change orders, early pay discounts, and most favored nations clauses
    3. Tooling
    4. Intellectual property
    5. Warranty obligations, disclaimers and remedies
    6. Limitations of liability
    7. Indemnity
    8. Boilerplate: Amendment, assignment, integration, choice of law, venue, dispute resolution, construction, advice of counsel and other clause

Benefits

Our speakers will discuss these and other key issues:

  • Approaches to dealing with the “Battle of the Forms” outside and within the scope of the supply agreement
  • Identifying the most risky contract provisions in manufacturing and supply agreements
  • How counsel for suppliers and customers can best mitigate risk when drafting and negotiating agreements
  • Techniques in encouraging your client to address these critical issues upfront
  • How to deal with situations in which your client has already begun performing with no agreement or only a purchase order

Faculty

Feinberg, Peter
Peter D. Feinberg
Atty
Law Offices of Peter D. Feinberg

Mr. Feinberg has more than 25 years of experience representing individuals and companies in all aspects and many...  |  Read More

Marell, Leslie
Leslie S. Marell

Marell Law Firm

Ms. Marell is a business and commercial law attorney with over 25 years experience as in-house and outside counsel. She...  |  Read More

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Strafford will process CLE credit for one person on each recording. All formats include program handouts. To find out which recorded format will provide the best CLE option, select your state:

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