Let’s Shake on It

Contracts in the Market Research World Joe Durkee, Esq.

PACTA SUNT SERVANDA

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Bad Strategic Decisions

I cant get it out of my head!

• Lack of clarity and anything hidden

• Anything complicated

• Others’ greed

• Competition in its own territory

Anything that helps survival

Openness

Simplicity

Its’ own greed

• Things that hurt or scared us when young

• Immobility

• Confinement

• Arrogance

• Cruelty

• Loneliness

• Liars

• Hypocrisy

• A smile without eyes

• Sychophants

• Things that made you feel safe when young

• Mobility (ability to do what you want when you want)

• Itself (being alive)

• Feeling important (your own power)

• Altruism (a better safer community)

• Gratitude

Our Social Contract

Individual Freedoms

Scarcity of resource (money, water, safety...)

Motivation for competition for the resource

Belief that social interaction and cooperation = potential for gain

Let’s Make a Deal

vs

Clauses To Pay Attention To

Clause and Effect

“In the event of litigation relating to the subject matter of this Agreement, the non-prevailing party shall reimburse the prevailing party for all reasonable attorney fees and costs resulting therefrom.”

Attorney Fees Clause

Effect: In the event of litigation, the loser reimburses the prevailing party's attorney fees. Take Away: You can end up paying your own attorney and the other attorneys fees as well as the judgment and usually costs! Fees usually must be reasonable as determined by the Court.

Attorney Fees Clause

“This agreement shall be interpreted under the laws of the State of Bliss. Any litigation under this agreement shall be resolved in the trial courts of Harmony town, State of Bliss.”

Choice of Law and Forum Clause

Effect: • Contracts to be interpreted under the laws of a particular

state or jurisdiction • Any litigation will occur within a specified jurisdiction Take Away: It costs a lot to: -travel to other states -pay for meals and housing Working with attorneys from other jurisdictions can cause effort coordination and communication issues.

Choice of Law and Forum Clause

“This Agreement and the exhibits attached hereto contain the entire agreement of the parties with respect to the subject matter of this Agreement, and supersede all prior negotiations, agreements and understandings with respect thereto. This Agreement may only be amended by a written document duly executed by all parties.”

Merger and Integration Clause

Effect: Prevents the parties to a contract from later claiming that the contract: • does not reflect their entire understanding • was changed by a subsequent oral agreement • is not consistent with prior agreements Take Away: Make sure that all promises and agreements are actually included in the written contract. It may be impossible to enforce those unwritten promises.

Merger and Integration Clause

“X company agrees to indemnify and hold harmless Y company against loss or threatened loss or expense by reason of the liability or potential liability of X company for or arising out of any claims for damages.”

Indemnity Clause

Effect: An indemnity clause requires that one party pay the other, in the event that certain expenses are incurred. Take Away: This clause, like the attorney fee clause can significantly increase your exposure in the extent of an unexpected event or breach of the contract.

Indemnity Clause

“Time is of the essence for the completion of the work described in this contract. It is anticipated by the parties that all work

described herein will be completed within two (2) weeks of the date of execution, and that any delay in the completion of the work described

herein shall constitute a material breach of this contract.”

Time of Performance Clause

Effect: Failure to complete the agreed upon terms in the Agreement can result in a breach of contract claim.

Take Aways: • Make sure the time can be completed within the specified

window • Have other clauses that excuses untimely performance such as

Acts of God, War, Disruption in supply chain etc… • If time is not of the essence, consider having a clause that states

as such, “The parties agree that time is not of the essence in the completion of the work described in this contract. All parties shall act to complete the work described within a reasonable time.”

Time of Performance Clause

“All disputes, controversies, or claims arising out of or relating to this contract shall be submitted binding arbitration in accordance with the applicable rules of the American Arbitration Association then in effect.”

Arbitration Clause

Effect: Has the potential to take away the right to a jury trial and appellate rights a person normally has. Take Aways: • Litigation is always expensive and takes a long time • Arbitration can be much less expensive and move

much more quickly • Trial is very formal whereas arbitrations can be less

so • A well written arbitration clause is worth considering

Arbitration Clause

“If any provision of this Contract is held unenforceable, then such provision, if allowable, will be modified to reflect the parties' intention. All remaining provisions of this Contract shall remain in full force and effect.”

Savings (Severability) Clause

Effect: Meant to ensure that the contract remains enforceable even if part of the contract is later held invalid. Take Away: • In the absence of a savings clause, it is possible that if a

single clause is held invalid, the entire contract will also be rendered invalid

• Don’t think you are going to get out of your contractual obligations just because one clause is held invalid

Savings (Severability) Clause

“The failure by one party to require performance of any provision of this Agreement shall not affect that party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Contract constitute a waiver of any subsequent breach or default or a waiver of the provision itself.”

Non-Waiver Clause

Effect: Meant to prevent a party from saying that they were allowed to breach a certain provision in the contract in the past so they should be allowed to do it forever more Take Away: • This clause allows some flexibility in party behavior • Allows for a breach of a provision without losing

the rights under that provision

Non-Waiver Clause

Effect: Tells the Client what they are NOT to expect under the Agreement Take Away: While the Integration Clause states that the Agreement represents the total understanding of the parties, it is always prudent to make clear what you will NOT be doing so the Client cannot say “but you said you would do that”

Service Agreement Exclusion Clause

• Interview as Many as It Takes! • Counsel You Like • Shared Values • Communicate Well With (both ways) • Multiple Recommendations • Reputation in the Community • Don’t Blindly rely on-

• Member of X, Y or Z Association • Ratings • “Super Lawyer” Status

Selecting Counsel

• Get a bid • Flat fee an option? • Value based billing an option? • Blended billing an option? • Understand completely how you are going to be

billed! • Lawyer willing to reduce bill if request is

reasonable? • Always scrutinize the bill!

Billing

Branding

It’s a Wrap