An indemnification provision can be included in an agreement to establish which party will assume liability upon the occurrence of a specified event. This provision’s importance lies in the fact that it provides additional protection to a party for the other party’s breach of its obligations under the agreement.  Events that can trigger indemnification liability include, but are not limited to, the following: breach of a representation, warranty or covenant of the agreement; negligent misconduct; and/or copyright or patent infringement.  The party agreeing to provide indemnification should consider the ramifications relating to indemnification and craft the provision in a manner that focuses on the issues as they relate to the relationship between the parties.  Ultimately, it is important to include an indemnification provision to ensure that in the event the other party breaches the agreement you have adequate recourse to recover your losses or damages.

Protecting your company’s name, logo and/or mark (collectively, the “Company Marks”) from unauthorized use should always be a priority when drafting an agreement.  Including a use of name/advertising provision in the agreement that limits the use of the Company Marks in any advertising or promotional literature without your company’s prior written permission can protect unauthorized use.  Such a provision puts the opposing party on notice that the use of the Company Marks without permission is a breach of your legal right and can result in a potential claim by your company.  It is important to remember that the Company Marks can be a valuable marketing tool that an opposing party to a contract could potentially use to gain additional customers for its product or service (resulting in monetary gain for the opposing party, not your company). Consequently, a use of name/publication provision should, at minimum, require the opposing party to seek written permission from the owning party (the company) prior to each instance of use of the Company Mark.

Purchasing goods and services in foreign jurisdictions can be both advantageous and disadvantageous for a potential buyer. Often, the pros of purchasing in a foreign jurisdiction include lower costs, speed of delivery of the goods and/or services and less restrictive terms and conditions. On the other hand, the cons of purchasing in a foreign jurisdiction have the potential to be more extensive. Some of these issues include, but are not limited to, determining the governing law of the contract, communication between the parties, upfront payment for the goods and/or services without mitigating the risk of receiving compliant goods, and culture/language limitations. The key to the purchasing of goods and/or services in foreign jurisdictions is to address the aforementioned issues prior to entering into the agreement, to the extent possible (particularly, structuring a payment schedule that will limit your risk exposure). Addressing these issues can potentially limit confusion with the terms of the agreement at a later date.

Form agreements provide a uniform template for low risk business transactions. However, a “penny saved” by using forms is not always a penny used in your best interest. Because every transaction is unique, it is imperative to know when the use of a form agreement is appropriate. Generally, form agreements are not appropriate when dealing with specialized or high risk business transactions where generic terms and conditions could be ambiguous or detrimental (i.e., technology, human resource, consulting and long-term master services agreements). If using a form agreement, prior to signing, please read the form for each transaction to determine if the terms and conditions are consistent and/or applicable with the business deal.