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

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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, November 8, 2022

Recorded event now available

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This CLE course will provide insight into identifying, drafting, and negotiating complex, high-risk provisions in manufacturing and supply agreements, including warranty, intellectual property, tooling, indemnity, limitations of liabilities, forecasts, price adjustments, change orders, and more. Also, our speakers will guide counsel for both suppliers and customers regarding the "battle of the forms"--when the parties exchange forms and do not negotiate a master supply agreement. Either situation may be a complex undertaking, often resulting in unanticipated consequences, mistakes, disputes, and contractual breakdowns.


The frequent use of template supply agreements and the parties' failure to follow the procedures of the agreement's provisions cause contractual complications.

While companies are increasingly signing master supply agreements with their suppliers, a significant percentage of product purchases and sales still occur without a negotiated agreement. The parties exchange multiple legal documents, such as requests for quotes, proposals, orders, and acknowledgments, creating the "battle of the forms" and confusion about which terms prevail.

Listen as our panel, experienced in manufacturing and supply agreements, discusses best practices for drafting, negotiating, and executing these contracts. They will discuss specific high-risk clauses to consider and negotiate to mitigate risk and approaches to dealing with the battle of the forms.



  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 POs
    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. Force majeure, including epidemics
    9. Boilerplate: amendment, assignment, integration, choice of law, venue, dispute resolution, construction, advice of counsel, and other clauses


The panel will review 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 riskiest contract provisions in manufacturing and supply agreements
  • Negotiating warranty, intellectual property, tooling, indemnity, limitations of liabilities, forecasts, price adjustments and change order provisions
  • How to deal with situations when your client has already begun performing with no contract or only a PO


Ellis, Nicholas
Nicholas J. Ellis

Foley & Lardner

Mr. Ellis’ practice focuses on manufacturing and supply chain disputes, UCC, warranty claims, contract law, and...  |  Read More

Fromm, Andrew
Andrew B. Fromm

Brooks Wilkins Sharkey & Turco

Mr. Fromm specializes in business contracts, litigation, supply chain agreements, negotiations, disputes, warranty and...  |  Read More

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