Tips for contract

negotiation

Carolyn McKee and Maria Daraban

Legal Services Office

Tuesday 27 September 2016

Objectives of this session

• Awareness of choices available to individuals in

departments at early stages

• Where to go for help?

• Understanding the University as a charity

• Direct/indirect connection to charitable objects

• Services – buying/selling – and costing

considerations

Overview

• What is a contract, and what forms might it take?

• Who has signing authority?

• Consequences of using others’ templates

• Advantages of using University standard terms

and/or seeking advice as appropriate

Form of a contract

• What’s in a name?

o Contracts

o Agreements

o Click-through terms on websites

o Purchase orders

o Grants with terms and conditions

o Memorandums of Understanding

o Course of dealing

Who can sign?

• Signing authority – depending on type of contract

• Vice-Chancellor, Registrar, Director of Finance

• Research Services, Estates, Director of Legal

Services

• Heads of Department

• Other individuals?

• What happens when something is signed

outside the rules?

Using the other party’s standard terms

General problems:

• One-sided agreements presented as “policy” or

“standard”

• More difficult to negotiate away from other party’s

starting position (and makes it seem like we do

not have a standard position of our own)

Using other party’s standard terms

Other disadvantages:

• Unlimited liability, indemnities

o Unlimited risk for University

o May go beyond signing authority

• Burdensome or unreasonable obligations

o Guarantees and warranties around deliverables

and timescales

o Outcomes we might not be able to control

o One-sided termination terms

Using other party’s standard terms

Academic problems:

• Charitable asset stripping

• Academic freedom hindered

• Publications restricted

• Restrictions on future research

Other aspects potentially not addressed:

• Freedom of information and data protection obligations

• Obligations we may have to third parties

Advantages of our templates

• Not unreasonably one-sided but addresses most

important points for University

• Shows that we have a standard approach and

allows for a stronger negotiating position

• Provides a checklist for person negotiating

contract to remember to address essential issues

Principal terms of our templates

• Limitation of liability

• Confidentiality

o Clarity as to what qualifies as confidential

o Time limit

• Termination

o Ability to terminate for material breach,

insolvency, other relevant events

• Reasonable and realistic obligations

Where academic work is involved…

• Protects publication rights

• Protects University’s intellectual property

• Preserves rights of the University to engage in

future research

• Protects individuals from liability and preserves

future academic freedom

• Ensures we do not compromise other University

projects or potentially breach other agreements

Seek assistance where unsure

• Research Services

• Purchasing

• Legal Services

QUESTIONS?