Upload
anne-chandler
View
216
Download
0
Tags:
Embed Size (px)
Citation preview
ELEMENTS OF GOODASSOCIATION CONTRACTS
SNA National Leadership ConferenceColorado Springs, CO April 25, 2008
Jerry Jacobs, Pillsbury Law Firm, Washington, DC
2
Agenda
• What is a Contract?
• Special Issues with Contracts
• Special Issues with Contracts for Meetings
• Reviewing Contracts
4
Preliminary -- Recognition
– Letter/memo/brochure/deck/e-mail offering services or goods if association agrees (“agree” may be implied)
– Written on paper or not
– “Memorandum of Understanding”?
– Terms sheet, deal memo, letter of intent
– Most common non-obvious enforceable contract – exchange of letters or e-mails
– Distinguish “contract” from “partnership”
– ALL CONTRACTS ARE NEGOTIABLE
5
Preliminary -- Definition
Understanding* between people or firms that creates a binding relationship; each has obligations; each expects something in return.
* “CONTRACT” = “AGREEMENT”
6
Essential Elements
1. Offer
- Conditional promise
- Can be withdrawn before acceptance
- Can have time limit
7
Essential Elements
2. Acceptance
- Assent to offer on its terms
- Any means ok unless specified
- Material change = counter-offer
8
Essential Elements
3. Consideration
- Value exchanged
- Adequacy not an issue
- If unspecified, no contract
11
Special Issues
1. Modification
- If contract exists, no modification unless all parties agree
- Discussion, assurance, promise, expectation, reasonableness all insufficient
12
Special Issues
2. Authority
- Be sure representative has authority
- If representative says so, and is not obviously without authority, that’s enough
13
Special Issues
3. Applicable Law
- Most states have equivalent law
- Does not affect jurisdiction
14
Special Issues
4. Arbitration/Mediation
- Anything’s better than litigation (unless it’s not)
- Very dependent upon system/personnel
16
Special Issues -- Meetings
1. Their form or yours?
- Rarely an option
- “Adhesion” doctrine inapplicable
- Alternative: addendum
17
Special Issues -- Meetings
2. ”Block” vs. ”Reservation”
- Standard -- facility commits to hold space if sponsor commits to promote use
- Alternative: sponsor agrees to use
- Failure to use subject to cancellation/ penalty
provisions
18
Special Issues -- Meetings
3. Cancellation
- Usually subject to conditions
- Penalties depend upon timing
- “Force Majeure” excuses cancellation
21
Contract Review – W I P I T
1. Warranty
- What precisely will be provided
- Include due dates for performance
- Include standards/criteria
- Include who will perform
- Must rely for breach or leverage
- INSIST THAT IT BE DETAILED
22
Contract Review – W I P I T
1. Intellectual Property
- Must include (1) who’s providing copyrights, trademarks, mailing lists, (2) under what terms and (3) who owns what
- For copyrights, use license (permission) or assignment (transfer) unless work-for-hire
- For trademarks, use license and rules
23
Contract Review – W I P I T
1. Payment
- Clear statement of payment terms, including schedule
- Consider payments stretched over time of performance
- Retain some amount until performance is concluded
24
Contract Review – W I P I T
1. Indemnification
- Vendor/provider will protect association from claims arising from vendor/providers’ services
- Usually mutual, although association rarely has much risk
- If vendor/provider is small or poorly capitalized, consider alternatives – other vendors, insurance, limited engagement, closer scrutiny, acceptance of risk
25
Contract Review – W I P I T
1. Termination
- Clear statement of term and end of contract
- Doesn’t have to be equivalent
- Specify return of materials, delivery of partially-completed work, relinquishment of IP whether or not there’s a dispute
- Pro’s and con’s of arbitration/mediation
- Anticipate and address worst case