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2011 Top Terms in Negotiation

IACCM 2011. All rights reserved.

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Table of Contents
Abstract ................................................................................................................................................... 3 Contract Negotiations Continue To Leak Value ...................................................................................... 3 The Environment..................................................................................................................................... 5 Does it matter? ....................................................................................................................................... 7 What should we do about it?.................................................................................................................. 9 Attachment 1: Full Survey Results ........................................................................................................ 11

This study was undertaken in the period December 2010 April 2011 and the results are based on input from 1,123 organizations, representing more than 8,000 negotiators. Individual contributors came from procurement, legal and sales contracting functions in more than 60 countries. Attachment 1 shows results for major types of legal system, by geography, by industry, and by business role. It should be noted that input typically represents large international corporations and therefore may not be an accurate reflection of negotiations at a local level or between smaller organizations.

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Abstract
Disagreements over acceptance or delivery are the number one cause of contractual claims and disputes. So it is not surprising that the parties to a contract focus so strongly on the question of who will be liable for the consequences of failure. But could it be that the frequency of failure is in fact directly linked to the way we go about negotiation? IACCM research suggests that the answer is yes. Business negotiations far from achieving a good deal are often contributing to a failed or disappointing outcome.

Contract Negotiations Continue To Leak Value


We enter into contracts because each party believes that there is potential for benefit. But the results of IACCMs worldwide survey show that if we want to maximize the chances of realizing the benefit, we must focus on a different set of contract terms during negotiation. In its 10th annual survey of the most frequently negotiated terms and conditions, IACCM once more reveals that business contracts are constraining the value that can be achieved from high-performing relationships. For the first time, the study also identifies the most common sources of failure in contract outcomes and this indicates the potential value that could come from a robust contracting strategy and competence.

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TOP 30 TERMS in 2011 Limitation of Liability Indemnification Price / Charge / Price Changes Intellectual Property Payment Liquidated Damages Performance/Guarantees / Undertakings Delivery / Acceptance Applicable law / Jurisdiction Confidential Information/Non disclosure Service Levels and Warranties Warranty Insurance Service Withdrawal or Termination Data Protection / Security Scope and Goals Responsibilities of the Parties Change Management Invoices / Late Payment Audits / Benchmarking Dispute Resolution Assignment / Transfer Rights of Use Force Majeure Freight / Shipping Business Continuity / Disaster Recovery Most Favored Client Communications and Reporting Entirety of Agreement Information Access and Management

2011 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

2010 1 2 3 4 6 9 18 8 14 5 7 10 11 13 5 12 15 17 16 20 19 21 22 24 28 23 30 26 25 29

2009 1 2 3 4 8 9 7 10 5 6 11 15 12 5 14 13 17 19 18 16 20 22 26 23 21 27 24 25 29

2008 1 2 3 4 8 11 15 9 6 10 7 13 12 5 10 14 17 16 19 18 22 21 24 20 23 -

2007 1 2 4 3 9 10 15 8 6 7 11 14 12 5 7 19 18 17 16 15 27 21 22 20 23 -

Table 1: Most Frequently Negotiated Terms

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The Environment
Most business contracts are designed to fit a rules-driven approach, which assumes that the more powerful party will impose standard terms and conditions reflecting its interests and procedures. Negotiation is therefore restricted to situations in which there is some form of counter-balancing power, or there are deal or relationship characteristics that require crafted terms. While the economic impact of standard terms can be debated (and many organizations appear to be making a poor trade-off in this regard), the IACCM study focuses on situations in which negotiation does occur. Since standard terms are now so widespread, these naturally form the base for most negotiations and as a result, skew the topics on which the negotiators focus. As the results of the survey show, the biggest divide between trading partners today is in how they seek to allocate risk. Therefore the polar extremes are in their approaches to allocating liabilities and seeking or granting indemnities. These topics along with price and payment - overwhelmingly dominate negotiations. A quick review of the top ten negotiated terms reveals the extent to which negotiators are channelled into asset protection and the consequences of failure intellectual property rights, liquidated damages, governing law and payment terms being examples. As Table 2 illustrates, the negotiators are clear that this focus damages the value achieved from trading relationships; they are also clear about where effort in negotiations should be placed (scope and goals, change or amendment procedures, communications and reporting). But for as long as contracting remains a largely transactional activity dominated by a legal / financial axis, there is little likelihood of change. Executives should be demanding more from their contracts. They should be asking why so many relationships fail to deliver to their potential and what role contracting and negotiation are playing in that failure.

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The terms that are negotiated with greatest frequency 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Limitation of Liability Indemnification Price / Charge / Price Changes Intellectual Property Payment Liquidated Damages Performance / Guarantees / Undertakings Delivery / Acceptance Applicable law / Jurisdiction Confidential Information / Non disclosure Service Levels and Warranties Warranty Insurance Service Withdrawal or Termination Data Protection / Security Scope and Goals Responsibilities of the Parties Change Management Invoices / Late Payment Audits / Benchmarking

Terms which would be more productive in supporting successful relationships Change Management Scope and Goals Responsibilities of the Parties Communications and Reporting Performance / Guarantees / Undertakings Limitation of Liability Delivery / Acceptance Dispute Resolution Service Levels and Warranties Price / Charge / Price Changes Audits / Benchmarking Indemnification Intellectual Property Payment Information Access and Management Business Continuity / Disaster Recovery Applicable law / Jurisdiction Confidential Information / Non disclosure Warranty Assignment / Transfer

Table 2: What should we be negotiating?

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Does it matter?
Writing last year in the Financial Times, the economist John Kay commented on the transformation in contracting practices that occurred in the 1990s. The substitution of transaction-oriented dealings for relationship contracting added to profitability in the short run; but in the long run it eroded relationships that had been the underlying source of much of that profitability. Our work at IACCM has convinced us that todays contracting practices are probably costing business 5- 7% on their bottom line. Far too much time is going into non-productive effort at the expense of the things that would create a better framework for success. Negotiation time is not infinite; we have to make choices on where that time is spent. Today, the effort is focused on a narrow battle over the price and the allocation of risk. Research consistently identifies that such an approach results in hidden costs and undermines outcomes. This approach may make sense for one-time transactions; it makes no sense when there are longer-term opportunities or a dependency on cooperation between the parties. For example, delegates at the 2011 General Assembly of the IEC, identified clear and reasonable risk sharing as the number one pre-requisite for success in large infrastructure projects. We enter contracts because we believe that there is mutual benefit to be achieved. A focus on the consequences of failure undermines the probability of success. In part, it damages trust and collaboration. But more importantly, it results in key areas of the contract content being overlooked or paid inadequate attention specifically, clarity over scope and goals and over the on-going governance and management procedures for the relationship. As any thoughtful manager will explain, good risk management is achieved through a balance of probability and consequence. Our contracts which we describe as risk management instruments frequently lack this balance. And the negotiating community knows this hence their identification of the importance of change procedures, scope and goals, and communications and reporting as the areas on which we should be spending more time. As a result of todays typical negotiation, we lose the benefit of an important management tool. The process creates an agreement that, relative to business goals, may already be misaligned or confusing before it is implemented; but perhaps worse, it then fails to provide the administrative framework and incentives for cooperative working and consensus. Proof of that lies in the most frequent sources of claim and dispute (see Table 3).

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During the post-award phase of contract performance which terms are the most frequent source of a claim or dispute?
Delivery / Acceptance Price / Charge / Price Changes Change Management Invoices / Late Payment Performance / Guarantees / Undertakings Service Levels and Warranties Payment Responsibilities of the Parties Liquidated Damages Scope and Goals Warranty Limitation of Liability Indemnification Service Withdrawal or Termination (cause / Intellectual Property Audits / Benchmarking Assignment / Transfer Dispute Resolution Data Protection / Security Communications and Reporting Insurance Rights of Use Confidential Information / Non disclosure Product Substitution Freight / Shipping Force Majeure Entirety of Agreement Applicable law / Jurisdiction Business Continuity / Disaster Recovery Other Export / Import Regulations Enterprise Definition / Future Acquisitions / Most Favored Client Non-Solicitation of Employees Escrow Security Information Access and Management Electronic Contracts / EDI 0% 8% 8% 7% 7% 6% 6% 5% 5% 5% 5% 4% 4% 4% 4% 3% 2% 2% 2% 2% 1% 1% 1% 5% 10% 15% 20% 25% 30% 35% 40% 45% 16% 16% 14% 14% 12% 10% 22% 21% 22% 27% 27% 25% 32% 30% 38% 41%

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It seems we are trapped in a vicious circle. The negotiators put much of this problem down to being involved too late, or being excluded from key discussions on goals and scope, or of poor leadership and weak change management procedures. There is truth in all these complaints yet, in the end, the negotiation community has done little to drive change. It blames others, rather than working on ways that it could promote solutions. As a result of late involvement or fragmented negotiations, the contracts and legal experts focus on protection; business people see this as negative behaviour, and therefore seek to delay or minimize their involvement. Indeed, this negativity flows through to the contracting process in its entirety, so we lose the ability to properly define projects and to frame them with an appropriate definition of oversight and management structure. There are many who seek to dismiss this weakness, with comments like: Its the relationship that matters, not the contract. And in good times, with relative stability, that may be true. But situations change, people change and markets change. In the face of such volatility, what good reason can there be to lose perhaps the most powerful management tool at our disposal?

What should we do about it?


The important point in the findings is that an organization practising good risk management would wish to undertake some root-cause analysis around the typical claim / dispute areas. Liability and indemnity clauses may assist in dealing with the consequence of risk events, but they are not especially effective at reducing probabilities. Any good deal-maker should be seeking to understand first and foremost how do we reduce the probability that things will go wrong and that is where Table 3 becomes useful (and I hope will prompt organizations to validate by assessing their own experiences). The fact that acceptance / delivery comes in first place in the global rankings raises several interesting points: It is quite an indictment of our contract management processes if the first time we do anything serious about non-conformance is when it reaches the acceptance / delivery phase There may of course be a few occasions where the dispute at this point is driven by extraneous factors (e.g. markets have changed and the customer is looking for any excuse not to take the goods they ordered); but in general, we must assume that there are genuine issues and in that case, it seems probable that the root cause lies further back in the process Anecdotal evidence suggests that the root causes are in fact to do with two other areas which appear in the top ten that is, scope and goals and change management (or variations and amendments, in some industries). We receive regular complaints that the goals of the relationship are not clearly spelt out (or that changes are not adequately thought through); that the scope is therefore frequently misaligned with the goals (or itself badly written); that the selection criteria are in consequence wrong, or may also have strayed from the goals and scope; that the evaluation weightings and the focus of negotiation move onto issues that form no part of the earlier elements (for example, the actual top ten terms are nowhere to be found in the earlier criteria); transition / implementation is frequently undertaken by a separate team that may have its own views of what they think the goals, scope and criteria should have been; and then we move into a Page 9

IACCM 2011. All rights reserved.

change process that frequently lacks rigor it is often informal, records are not maintained etc. In the end, the big question for the contract manager or lawyer is to what extent is it my job to care about these things? If the contracts and legal role is in fact only to manage against the consequences of these failures, then their focus on todays top ten is entirely understandable (if perhaps ineffective, because with poor scoping and change procedures, it is typically going to be very hard to allocate blame). But I do not believe that any professionals role can be undertaken without concern for its impact and effectiveness within the overall goals of the organization. And this survey provides clear evidence that our actions today are not adequately supporting those goals so they must change. Three commitments Over the next year, any forward-looking contracts organization buy-side, sell-side or legal should be committing to a three step change program. Review contract structures and standards Educate and empower internal stakeholders e.g, project management, sales Energize the support of executive management for a contracting strategy

Through these steps, measurable improvements will be achieved and the negotiation agenda will steadily change. Contracts will become vehicles for defining and managing relationships as well as the tool through which transactions are undertaken. As a recent article in Psychology Today pointed out, we are moving into the beginning of the relationship economy. Leading organizations need new approaches to the way they form and manage those relationships.

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Attachment 1: Full Survey Results

Participants by Industry
Transportation / Logistics 2%
Telecommunications

Automotive 1% Other 5% Aerospace / Defense 9%

Banking / Insurance / Financial 4% CPG / Retail 1% Electronics 1%

12%

Technology / Software 14%

Engineering / Construction / Real Estate 8%

Healthcare / Pharma / Chemicals 5% Oil / Gas / Minerals / Utilities 15% Legal 3% Manufacturing / Processing 5% Hotel / Leisure 1%

Services / Outsourcing / Public Sector / Consulting Government 11% 3%

Region
South/Central America 2%

North America 37%

Europe 36%

Australasia 5%

Asia 11% Africa 2% Middle East 7%

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In your experience what % of your company's contracts result in a significant claim or dispute? (all participants)
90-100% 80-90% 70-80% 60-70% 50-60% 30-40% 20-30% 10-20% 0-10% 0.0% 10.0% 20.0% 30.0% 40.0% 50.0% 60.0% 70.0% 0.4% 0.1% 0.5% 0.2% 1.1% 1.9% 5.2% 11.3% 79.3% 80.0% 90.0%

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Of those contracts where there is a significant claim or dispute how frequently do you rely on or invoke the following clauses? (Rarely is 1, and on most occasions is 5)
IP 2.52

warranty

3.17

Data protection/security

2.29

Confidential Information/non disclosure

2.32 Average

Performance/Undertakings

3.51

Indemnification

2.77

Limitation of liability

2.88

0.00 0.50 1.00 1.50 2.00 2.50 3.00 3.50 4.00 4.50 5.00

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Please tell us about your experiences in 2010. How have market conditions and practices impacted negotiations? (Very negative is 1 and Very positive is 5)
5.00 4.50 4.00 3.50 3.00 2.50 2.00 1.50 1.00 0.50 0.00 The level of collaboration The attitude to sharing risk The openness to negotiation 2.85 3.31 2.96 2.39 2.81 2.49 2.77 3.33 2.97 I mostly perform or support Sales Contracting / Commercial negotiation I mostly perform or support Procurement / Sourcing negotiation I perform or support both Buy-Side and Sell-Side negotiations

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If the aim of contract negotiation is to create a framework for successful business outcomes, do you believe that negotiations today focus on the right topics to achieve that aim?

Yes 27%

Partially 57%

No 16%

Please indicate the top 3 factors that are most significant in limiting your ability to change what is negotiated?
80.0% 70.0% 60.0% 50.0% 40.0% 30.0% 20.0% 10.0% 0.0%
7% 8% 23% 22% 44% 38% 33% 32% 21% 20% 44% 42% 35% 31% 22% 20% 67% 65%

2010 2011

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Seller's terms today 1 2 Indemnification 3 4 Intellectual Property 5 Payment 6 Liquidated Damages 7 Delivery / Acceptance 8 Performance / Guarantees / Undertakings Price / Charge Limitation of Liability

Seller's terms future Change Management Responsibilities of the Parties Scope and Goals Communications and Reporting

Buyer's terms today Limitation of Liability

Buyer's terms future Change Management Communications and Reporting Scope and Goals Responsibilities of the Parties Performance/ Guarantees / Undertakings Service Levels and Warranties

Indemnification Price / Charge

Intellectual Property

Limitation of Liability

Payment Performance/Guarantees / Undertakings

Delivery / Acceptance Performance/ Guarantees / Undertakings Service Levels and Warranties

Delivery / Acceptance

Price / Charge

Liquidated Damages Confidential Information / Non disclosure Applicable law/Jurisdiction

Audits / Benchmarking

9 Service Levels and Warranties 10 11 Warranty Confidential Information / Non disclosure Applicable law / Jurisdiction Dispute Resolution Indemnification

Limitation of Liability Delivery / Acceptance

Price / Charge Audits / Benchmarking

Service Levels and Warranties Warranty

Indemnification Dispute Resolution Business Continuity / Disaster Recovery

12 13

Data Protection / Security 14 Service Withdrawal or Termination

Intellectual Property

Insurance

Payment Information Access and Management

Scope and Goals

Intellectual Property Information Access and Management

15 Change Management 16 Responsibilities of the Parties 17 Audits / Benchmarking 18 19 Scope and Goals Invoices / Late Payment

Responsibilities of the Parties Service Withdrawal or Termination

Data Protection / Security Business Continuity / Disaster Recovery Warranty Applicable law / Jurisdiction

Payment Confidential Information / Non disclosure Applicable law/ Jurisdiction Assignment / Transfer

Data Protection / Security Invoices / Late Payment Change Management

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20 Assignment / Transfer 21 22 Insurance 23 24 25 Force Majeure 26 Communications and Reporting Information Access and Management Rights of Use Most Favored Client Dispute Resolution

Confidential Information / Non disclosure Liquidated Damages

Dispute Resolution Audits / Benchmarking

Most Favored Client Entirety of Agreement Enterprise Definition / Future Acquisitions / Divestiture Liquidated Damages Warranty

Service Withdrawal or Termination Invoices / Late Payment Assignment / Transfer

Assignment / Transfer Freight / Shipping Force Majeure Business Continuity / Disaster Recovery

Insurance

Data Protection / Security

Rights of Use

Entirety of Agreement Communications and Reporting

Insurance

27

Entirety of Agreement

Invoices / Late Payment Service Withdrawal or Termination

28 Export / Import Regulations 29 Business Continuity / Disaster Recovery 30 Entirety of Agreement Other Enterprise Definition / Future Acquisitions / Divestiture Export / Import Regulations Rights of Use

Information Access and Management Non-Solicitation of Employees

Rights of Use Other

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Middle East Today 1 Limitation of Liability

Middle East Future Communications and Reporting Responsibilities of the Parties Change Management

Europe Today

Europe Future

Asia/Pacific Today Limitation of Liability Price / Charge / Price Changes

Asia/Pacific Future

North America Today

North America Future

Limitation of Liability Price / Charge / Price Changes

Change Management Communications and Reporting Responsibilities of the Parties

Change Management Responsibilities of the Parties Communications and Reporting

Indemnification

Change Management

2 Payment 3 Price / Charge / Price Changes

Limitation of Liability

Scope and Goals Responsibilities of the Parties Performance/Guarantees / Undertakings Communications and Reporting

Indemnification Intellectual Property Liquidated Damages

Payment Liquidated Damages Applicable law / Jurisdiction

Intellectual Property Price / Charge / Price Changes Confidential information / Non disclosure

4 Indemnification 5 Delivery / Acceptance Liquidated Damages Performance / Guarantees / Undertakings Applicable law / Jurisdiction Dispute Resolution Change Management Scope and Goals Limitation of Liability Applicable law / Jurisdiction

Scope and Goals Performance / Guarantees/Undertakings

Scope and Goals

Delivery / Acceptance

Payment Performance / Guarantees / Undertakings Delivery / Acceptance Service Levels and Warranties Applicable law / Jurisdiction

Limitation of Liability

Indemnification Performance / Guarantees / Undertakings

Dispute Resolution

Payment

Dispute Resolution

Indemnification Dispute Resolution

Delivery / Acceptance Service Levels and Warranties

Limitation of Liability Price / Charge / Price Changes

Warranty

Limitation of Liability

Warranty Delivery / Acceptance Intellectual Property Confidential Information / Non disclosure

Data Protection / Security Applicable law / Jurisdiction

Indemnification

Payment Performance / Guarantees Information Access and Management

Dispute Resolution

Payment Service Levels and Warranties

Delivery / Acceptance Service Levels and Warranties

10

Audits / Benchmarking

Insurance

11 Insurance

Warranty

Price / Charge / Price Changes

Audits / Benchmarking

Delivery / Acceptance

Price / Charge / Price Changes

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12

Responsibilities of the Parties

Service Levels and Warranties Liquidated Damages Business Continuity / Disaster Recovery

Responsibilities of the Parties Confidential inf / Non disclosure

Business Continuity / Disaster Recovery Information Access and Management

Dispute Resolution

Applicable law / Jurisdiction Business Continuity / Disaster Recovery

Service Levels and Warranties Performance / Guarantees/Undertakings

Intellectual Property

13 Scope and Goals 14 Invoices / Late Payment 15 Confidential Information / Non disclosure Intellectual Property Service Withdrawal or Termination

Insurance

Audits / Benchmarking

Scope and Goals Service Withdrawal or Termination Change Management

Intellectual Property

Service Levels and Warranties

Information Access and Management

Liquidated Damages

Payment

Delivery / Acceptance Price / Charge / Price Changes

Indemnification

Scope and Goals Invoices / Late Payment

Liquidated Damages Performance / Guarantees/Undertakings

Service Withdrawal or Termination

Information Access and Management Confidential Information / Non disclosure

16

Payment

Scope and Goals

17

Invoices / Late Payment

Audits / Benchmarking

Assignment / Transfer

Responsibilities of the Parties Service Withdrawal or Termination Change Management Audits / Benchmarking

Warranty

Invoices / Late Payment

Applicable law / Jurisdiction

18 Service Levels and Warranties 19 Entirety of Agreement Audits / Benchmarking Confidential Inf / Non disclosure Most Favored Client Assignment / Transfer Data Protection / Security Assignment / Transfer Invoices / Late Payment Data Protection / Security Applicable law / Jurisdiction

Entirety of Agreement

Audits / Benchmarking

Business Continuity / Disaster Recovery

Indemnification Confidential Information / Non disclosure

Assignment / Transfer

Warranty Data Protection / Security Enterprise Definition / Future Acquisitions

20 Freight / Shipping 21 Force Majeure 22 Audits / Benchmarking

Entirety of Agreement Confidential Information / Non disclosure Service Withdrawal or Termination

Change Management Responsibilities of the Parties

Insurance

Freight / Shipping Data Protection / Security

Intellectual Property

Force Majeure

Rights of Use

Data Protection / Security

Dispute Resolution

Insurance

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23 Warranty 24 Assignment / Transfer 25 Most Favored Client Electronic Contracts / EDI

Export / Import Regulations

Dispute Resolution Business Continuity / Disaster Recovery Communications and Reporting

Invoices / Late Payment

Assignment / Transfer

Assignment / Transfer

Rights of Use

Rights of Use

Freight / Shipping Intellectual Property

Insurance

Export / Import Regulations

Service Withdrawal or Termination

Freight / Shipping

Entirety of Agreement

Liquidated Damages

Force Majeure Communications and Reporting Information Access and Management Entirety of Agreement

Electronic Contracts / EDI

Most Favored Client

Assignment / Transfer

26

Security Service Withdrawal or Termination

Force Majeure

Warranty

Invoices / Late Payment

Force Majeure

Most Favored Client

27 Security 28 Export / Import Regulations Information Access and Management

Entirety of Agreement Information Access and Management

Rights of Use

Force Majeure

Information Access and Management

Liquidated Damages

Insurance

Most Favored Client Enterprise Definition / Future Acquisitions / Divestiture

Insurance

Entirety of Agreement

Other

29

Entirety of Agreement Enterprise Definition / Future Acquisitions

Most Favored Client

Most Favored Client

Most Favored Client

Non-Solicitation of Employees

Invoices / Late Payment

30

Other

Export / Import Regulations

Other

Product Substitution

Non-Solicitation of Employees

Other

Service Withdrawal or Termination

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UCC

English / Common Law base

French / French Law base


Limitation of Liability Applicable law / Jurisdiction Price / Charge / Price Changes

German / Germanic Law base

Scandinavian

Middle East / Islamic

Chinese

Spanish / Hispanic Law base

Limitation of Liability

Limitation of Liability

Limitation of Liability Price / Charge / Price Changes

Limitation of Liability Price / Charge / Price Changes

Limitation of Liability Price / Charge / Price Changes

Limitation of Liability

Limitation of Liability Applicable law / Jurisdiction Data Protection / Security

2 Indemnification 3 Intellectual Property Price / Charge / Price Changes Indemnification Price / Charge / Price Changes

Payment Applicable law / Jurisdiction Price / Charge / Price Changes

Warranty

Intellectual Property

Payment

Intellectual Property

Liquidated Damages Performance / Guarantees / Undertakings Responsibilities of the Parties

Delivery / Acceptance

Indemnification

Indemnification

Indemnification Confidential Information / Non disclosure

5 Warranty 6 Applicable law / Jurisdiction Payment

Intellectual Property

Payment Performance/Guarantees / Undertakings

Liquidated Damages

Delivery / Acceptance

Liquidated Damages

Liquidated Damages

Delivery / Acceptance

Indemnification Confidential Information / Non disclosure

Intellectual Property Performance / Guarantees / Undertakings

7 Payment 8 Liquidated Damages 9 Confidential Information / Non disclosure Service Levels and Warranties Delivery / Acceptance Confidential Information / Non disclosure Intellectual Property Indemnification Liquidated Damages Responsibilities of the Parties Applicable law / Jurisdiction

Indemnification

Payment

Dispute Resolution Performance / Guarantees / Undertakings Invoices / Late Payment

Intellectual Property

Payment

Service Levels and Warranties Performance/Guarantees / Undertakings

Payment

Applicable law / Jurisdiction Service Levels and Warranties

Scope and Goals

Audits / Benchmarking

Delivery / Acceptance

10

Scope and Goals Confidential Information / Non disclosure

Delivery / Acceptance

Dispute Resolution

Dispute Resolution

11 Insurance Warranty

Audits / Benchmarking

Applicable law / Jurisdiction

Scope and Goals

Liquidated Damages

Price / Charge / Price Changes

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12

Performance / Guarantees

Applicable law / Jurisdiction

Warranty

Data Protection / Security Confidential Information / Non disclosure Performance / Guarantees / Undertakings

Warranty Service Withdrawal or Termination (cause / convenience)

Change Management Confidential Information / Non disclosure

Scope and Goals

Audits / Benchmarking

13 Data Protection / Security 14 Delivery / Acceptance 15 Scope and Goals 16 Most Favored Client 17 Freight / Shipping 18 Responsibilities of the Parties 19 Service Withdrawal or Termination (cause / convenience) Service Withdrawal or Termination (cause / convenience) Invoices / Late Payment Change Management Scope and Goals Insurance Change Management Delivery / Acceptance Invoices / Late Payment Assignment / Transfer Service Withdrawal or Termination (cause / convenience) Data Protection / Security Service Levels and Warranties

Warranty

Information Access and Management

Service Levels and Warranties

Insurance Responsibilities of the Parties Service Levels and Warranties

Change Management Performance / Guarantees / Service Levels and Warranties Invoices / Late Payment

Assignment / Transfer

Change Management

Assignment / Transfer

Liquidated Damages Export / Import Regulations Invoices / Late Payment

Assignment / Transfer

Change Management Confidential Information / Non disclosure

Rights of Use

Force Majeure

Scope and Goals

Rights of Use

Service Withdrawal or Termination (cause / convenience)

Information Access and Management

Warranty

Responsibilities of the Parties

Data Protection / Security

Service Withdrawal or Termination (cause / convenience)

Dispute Resolution

Audits / Benchmarking

Data Protection / Security Service Withdrawal or Termination (cause / convenience) Responsibilities of the Parties

Change Management

20 Change Management 21 Audits / Benchmarking Audits / Benchmarking Insurance Entirety of Agreement Communications and Reporting Responsibilities of the Parties Communications and Reporting Data Protection / Security Intellectual Property Entirety of Agreement

Responsibilities of the Parties

Assignment / Transfer

Dispute Resolution

Insurance Business Continuity / Disaster Recovery

22 Dispute Resolution Dispute Resolution Rights of Use

Insurance

Warranty

Insurance

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23

Assignment / Transfer

Force Majeure

Audits / Benchmarking

Invoices / Late Payment

Business Continuity / Disaster Recovery

Freight / Shipping

Product Substitution

Communications and Reporting Enterprise Definition / Future Acquisitions / Divestiture

24 Communications and Reporting 25 Enterprise Definition / Future Acquisitions / Divestiture Rights of Use Export / Import Regulations Dispute Resolution Audits / Benchmarking Assignment / Transfer Assignment / Transfer

Business Continuity / Disaster Recovery

Communications and Reporting

Force Majeure Enterprise Definition / Future Acquisitions / Divestiture Export / Import Regulations Business Continuity / Disaster Recovery

Entirety of Agreement Enterprise Definition / Future Acquisitions / Divestiture

Communications and Reporting

Business Continuity / Disaster Recovery

Rights of Use Service Withdrawal or Termination (cause / convenience)

26 Export / Import Regulations 27 Force Majeure 28 Information Access and Management Product Substitution Entirety of Agreement Freight / Shipping Information Access and Management Security

Product Substitution

Most Favored Client Electronic Contracts / EDI

Most Favored Client Non-Solicitation of Employees Business Continuity / Disaster Recovery Information Access and Management

Product Substitution

Other Business Continuity / Disaster Recovery Data Protection / Security Electronic Contracts / EDI

Force Majeure

Other

Force Majeure

Force Majeure Entirety of Agreement

Freight / Shipping Electronic Contracts / EDI Entirety of Agreement

29

Entirety of Agreement

Escrow

Invoices / Late Payment Non-Solicitation of Employees

30

Most Favored Client

Insurance

Rights of Use

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Aerospace / Defence

Engineering / Construction / Real Estate Limitation of Liability

Oil / Gas / Minerals / Utilities Limitation of Liability

Services / Outsourcing / Consulting Limitation of Liability Price / Charge / Price Changes

Technology / Software

Banking / Insurance / Financial Limitation of Liability Intellectual Property

Healthcare / Pharma / Chemicals Price / Charge / Price Changes Limitation of Liability

Legal

Manufacturing / Processing

Telecommunications

Limitation of Liability

Limitation of Liability

Limitation of Liability Applicable law / Jurisdiction

Limitation of Liability

Limitation of Liability

2 Indemnification 3 Intellectual Property Price / Charge Liquidated Damages Indemnification Price / Charge / Price Changes

Indemnification Intellectual Property

Indemnification Price / Charge / Price Changes

Indemnification Price / Charge / Price Changes

Indemnification

Indemnification

Indemnification Confidential Information / Non disclosure

Indemnification

4 Price / Charge / Price Changes 5 Delivery / Acceptance 6 Liquidated Damages 7 Warranty 8 Scope and Goals 9 Applicable law / Jurisdiction Scope and Goals Dispute Resolution Insurance Change Management Intellectual Property Payment Performance / Guarantees / Undertakings Audits / Benchmarking Confidential Information / Non disclosure Service Levels and Warranties Confidential Information / Non disclosure Delivery / Acceptance Warranty Performance / Guarantees / Undertakings Applicable law / Jurisdiction Indemnificatio n Applicable law / Jurisdiction Data Protection / Security Payment Payment Performance / Guarantees / Undertakings Liquidated Damages Intellectual Property Price / Charge / Price Changes Price / Charge / Price Changes

Dispute Resolution

Intellectual Property

Payment

Payment

Service Levels and Warranties

Data Protection / Security

Data Protection / Security Confidential Information / Non disclosure

Applicable law / Jurisdiction Performance / Guarantees / Undertakings

Intellectual Property

Warranty

Liquidated Damages

Responsibilities of the Parties Confidential Information / Non disclosure

Applicable law / Jurisdiction Confidential Information / Non disclosure

Service Levels and Warranties

Intellectual Property

Delivery / Acceptance

Delivery / Acceptance Responsibilities of the Parties

Liquidated Damages Performance / Guarantees

Payment

Intellectual Property Applicable law / Jurisdiction Performance / Guarantees / Undertakings

Warranty Confidential Information / Non disclosure

Liquidated Damages

10 Payment Delivery / Acceptance

Warranty

Audits / Benchmarking

Warranty

Service Levels and Warranties

Insurance

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11

Confidential Information / Non disclosure

Applicable law / Jurisdiction

Delivery / Acceptance Performance / Guarantees / Undertakings

Delivery / Acceptance Service Withdrawal or Termination

Liquidated Damages

Insurance

Service Levels and Warranties

Assignment / Transfer

Service Levels and Warranties

Data Protection / Security

12 Change Management 13 Performance / Guarantees / Undertakings Insurance

Assignment / Transfer Performance / Guarantees / Undertakings Service Withdrawal or Termination

Service Levels and Warranties

Liquidated Damages

Delivery / Acceptance

Delivery / Acceptance Performance / Guarantees / Undertakings

Invoices / Late Payment Service Withdrawal or Termination (cause / convenience)

Invoices / Late Payment

Scope and Goals

Liquidated Damages

Responsibilities of the Parties Service Withdrawal or Termination Business Continuity / Disaster Recovery

Invoices / Late Payment

Payment

14 Force Majeure 15 Dispute Resolution 16 Service Withdrawal or Termination Warranty Responsibiliti es of the Parties Responsibilities of the Parties Scope and Goals

Payment

Scope and Goals

Responsibilities of the Parties

Audits / Benchmarking

Change Management

Responsibilities of the Parties

Scope and Goals

Data Protection / Security

Entirety of Agreement

Freight / Shipping

Warranty

Intellectual Property Confidential Information / Non disclosure

Invoices / Late Payment

Change Management

Rights of Use

Scope and Goals

Other

Audits / Benchmarking

Export / Import Regulations

Assignment / Transfer

17

Insurance 18 Entirety of Agreement 19 Service Levels and Warranties 20 Invoices / Late Payment

Dispute Resolution

Insurance

Audits / Benchmarking

Change Management

Scope and Goals

Service Withdrawal or Termination

Change Management

Responsibilities of the Parties Confidential Information / Non disclosure

Audits / Benchmarking Communicati ons and Reporting Force Majeure

Service Levels and Warranties Service Withdrawal or Termination Audits / Benchmarking

Dispute Resolution

Invoices / Late Payment

Delivery / Acceptance

Dispute Resolution

Force Majeure Business Continuity / Disaster Recovery

Invoices / Late Payment

Applicable law / Jurisdiction Entirety of Agreement

Applicable law / Jurisdiction Enterprise Definition

Assignment / Transfer

Service Withdrawal or Termination

Dispute Resolution

Change Management

Force Majeure

Rights of Use

Freight / Shipping

Force Majeure

Scope and Goals

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21

Export / Import Regulations

Assignment / Transfer

Force Majeure Business Continuity / Disaster Recovery

Invoices / Late Payment

Responsibilities of the Parties

Liquidated Damages

Assignment / Transfer

Change Management

Most Favored Client

Business Continuity / Disaster Recovery

22 Audits / Benchmarking 23 Freight / Shipping 24 Responsibilities of the Parties 25 Assignment / Transfer 26 Other 27 Rights of Use 28 Data Protection / Security 29 Most Favored Client Security Data Protection / Security Freight / Shipping Service Withdrawal or Termination Service Levels and Warranties Entirety of Agreement Export / Import Regulations

Most Favored Client

Insurance

Product Substitution

Change Management

Price / Charge / Price Changes

Service Withdrawal or Termination

Communications and Reporting

Data Protection / Security

Rights of Use Business Continuity / Disaster Recovery

Change Management

Communications and Reporting

Audits / Benchmarking

Warranty

Scope and Goals

Dispute Resolution

Entirety of Agreement

Non-Solicitation of Employees Information Access and Management

Payment

Freight / Shipping

Data Protection / Security

Audits / Benchmarking

Freight / Shipping

Enterprise Definition

Warranty

Rights of Use

Information Access and Management

Insurance Information Access and Management

Business Continuity / Disaster Recovery

Force Majeure

Assignment / Transfer

Export / Import Regulations Information Access and Management

Business Continuity

Dispute Resolution

Force Majeure

Assignment / Transfer

Most Favored Client

Communications and Reporting

Most Favored Client

Entirety of Agreement Information Access and Management Most Favored Client

Business Continuity / Disaster Recovery

Rights of Use

Communications and Reporting

Information Access and Management

Electronic Contracts / EDI

Security Communication s and Reporting

Other

Non-Solicitation of Employees

Communications and Reporting Electronic Contracts / EDI Enterprise Definition / Future Acquisitions

Data Protection / Security Non-Solicitation of Employees

Enterprise Definition / Future Acquisitions

Escrow

Security

Escrow

Insurance

Insurance

30 Information Access and Management Most Favored Client Product Substitution Export / Import Regulations Electronic Contracts / EDI Communications and Reporting

Force Majeure

Product Substitution

Rights of Use

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Lawyers 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Limitation of Liability Indemnification Intellectual Property Applicable law / Jurisdiction Price / Charge / Price Changes Liquidated Damages Performance / Guarantees / Undertakings Service Levels and Warranties Warranty Delivery / Acceptance Confidential Information / Non disclosure Payment Data Protection / Security Responsibilities of the Parties Service Withdrawal or Termination Dispute Resolution Assignment / Transfer Audits / Benchmarking Insurance Scope and Goals Change Management Rights of Use Invoices / Late Payment Export / Import Regulations Force Majeure Entirety of Agreement Business Continuity / Disaster Recovery Information Access and Management Most Favored Client Freight / Shipping

Non-lawyers Limitation of Liability Price / Charge / Price Changes Indemnification Payment Intellectual Property Liquidated Damages Delivery / Acceptance Confidential Information / Non disclosure Performance / Guarantees / Undertakings Warranty Applicable law / Jurisdiction Service Levels and Warranties Scope and Goals Insurance Data Protection / Security Change Management Invoices / Late Payment Responsibilities of the Parties Audits / Benchmarking Service Withdrawal or Termination Assignment / Transfer Dispute Resolution Force Majeure Business Continuity / Disaster Recovery Rights of Use Entirety of Agreement Freight / Shipping Communications and Reporting Most Favored Client Information Access and Management

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