|
Consideration
|
Customer perspective
|
Supplier perspective
|
|
Negotiation
|
- I think I can sort this out on a commercial/relationship basis with my supplier. So why do I need to care about what the contract says or any legal issues and why should I be very worried about:
- accidentally waiving rights via negotiation?
- accidentally varying contracts by negotiation or simple changes to the way they are performed?
- not documenting any interim agreements reached with my Supplier (at all or as my contract requires)?
- what happens if negotiations break down?
|
- I think I can sort this out on a commercial/relationship basis with my customer. So why do I need to care about what the contract says or any legal advice?
- When will documenting any interim agreement with my customer suit me and when would it suit me to resist this?
- How can I turn what may be a problem for me into an opportunity for me?
|
|
Force majeure
|
- Can my supplier claim it in the circumstances?
- How do I access the information to verify if the force majeure has occurred?
- How long must it persist before I have a remedy?
- Does it have to persist continuously or in aggregate?
- What are my rights and remedies?
- What if termination isn’t the remedy I want/isn’t practicable?
|
- Does the contract and the circumstances let me claim force majeure (including what happens if the contract doesn’t mention force majeure)?
- How do I notify my customer that I am claiming force majeure?
- What if my customer asks for proof?
- Can I lose the right to claim force majeure?
- What do I have to do to preserve a force majeure claim after I have notified the customer of it?
|
|
Frustration
|
- Can I or my supplier claim it in the circumstances?
- How is it different to force majeure?
- What are the consequences of frustration – and will they suit me?
|
- Does the contract and the circumstances let me claim force majeure (including what happens if the contract doesn’t mention frustration)?
- How do I notify my customer that I am claiming frustration?
- What if my customer asks for proof of the frustration?
|
|
Most favoured/preferred customer
|
- Can I rely on the clause I have in my contract in the circumstances?
- How do I ensure that my supplier is complying in accordance with it?
|
- Have I got any contracts in which I prefer any customers over others?
- How do I allocate my goods/services in accordance with them?
- Are my obligations affected by force majeure, frustration or any other defence?
|
|
Exclusivity and alternative supply
|
- If I have an exclusive supply arrangement and my supplier claims force majeure or any other defence to non-supply, can I get my goods/services elsewhere without being in breach?
- If an alternative provider would need information (eg. IPR, confidential information, data) from my supplier, can I compel the supplier to provide it to a third party?
|
- Can I hold my customers to exclusive supply agreements when I am claiming force majeure, frustration or any other defence?
- Can I refuse to let an alternative supplier have information (eg. IPR, confidential information, data) owned by me but needed to supply alternative goods/services for my customer?
|
|
Liability
|
- What is my supplier’s potential liability to me under my contract (including whether the supplier can rely on any liability caps and/or liability exclusions)?
- When and how should I make my claim so that it is maximised but the impact on the relationship is minimised?
|
- What is my potential liability to my customer under my contract (including whether the supplier can rely on any liability caps and/or liability exclusions)?
- How can I mitigate it?
- What should I be doing to preserve my relationship with my customer even though they may have a claim against me?
|
|
Liquidated damages
|
- Can I claim LDs (and what if the contract doesn’t mention them)?
- When do they start and finish accruing?
- How are they calculated?
- Are they an exclusive remedy – and what does this actually mean?
|
- Am I exposed to LDs?
- Can I rely on any defences such as force majeure, frustration, dependencies on my customer?
- When do they start and finish accruing?
- Are they an exclusive remedy – and what does this actually mean?
|
|
Time of the essence
|
- What does this entitle me to?
- What if the contract doesn’t mention it?
- What if termination isn’t the remedy I want/isn’t practicable?
|
- Am I subject to a time of the essence clause?
- If the contract is silent could one be imposed on me by my customer?
|
|
Termination
|
- If termination is a desirable outcome, of all my claims which one(s) is/are the best to pursue?
- What if termination isn’t the remedy I want/isn’t practicable?
- Can the Supplier contrive a termination when I don’t want one?
|
- Does my customer have an ability to terminate our contract?
- If so, what responses are available to me?
- What if I want to terminate our contract but my customer does not? Are any mechanisms available to me to do this (including are common law remedies available to me)?
|
|
Governing law, jurisdiction and enforcement
|
- How concerned should I be about the governing law of my contract?
- How concerned should I be about the country in which my supplier is located and how the law works there?
|
- How concerned should I be about the governing law of my contract?
- How concerned should I be about the country in which my customer is located and how the law works there?
|
|
Onward supply
|
- I am both a customer of my supplier but also a supplier to my customers. So:
- how do I balance the competing considerations?
- what protections have I got in place with my customers so I can “back-to-back” potential exposure?
|
|