Consideration
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Customer perspective
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Supplier perspective
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Negotiation
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- I think I can sort this out on a
commercial/relationship basis with my supplier. So why do I
need to care about what the contract says or any legal issues and
why should I be very worried about:
- accidentally waiving rights via
negotiation?
- accidentally varying contracts by
negotiation or simple changes to the way they are performed?
- not documenting any interim
agreements reached with my Supplier (at all or as my contract
requires)?
- what happens if negotiations break
down?
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- I think I can sort this out on a
commercial/relationship basis with my customer. So why do I need to
care about what the contract says or any legal advice?
- When will documenting any interim
agreement with my customer suit me and when would it suit me to
resist this?
- How can I turn what may be a problem
for me into an opportunity for me?
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Force majeure
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- Can my supplier claim it in the
circumstances?
- How do I access the information to
verify if the force majeure has occurred?
- How long must it persist before I
have a remedy?
- Does it have to persist continuously
or in aggregate?
- What are my rights and remedies?
- What if termination isn't the
remedy I want/isn't practicable?
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- Does the contract and the
circumstances let me claim force majeure (including what happens if
the contract doesn't mention force majeure)?
- How do I notify my customer that I am
claiming force majeure?
- What if my customer asks for
proof?
- Can I lose the right to claim force
majeure?
- What do I have to do to preserve a
force majeure claim after I have notified the customer of it?
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Frustration
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- Can I or my supplier claim it in the
circumstances?
- How is it different to force
majeure?
- What are the consequences of
frustration – and will they suit me?
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- Does the contract and the
circumstances let me claim force majeure (including what happens if
the contract doesn't mention frustration)?
- How do I notify my customer that I am
claiming frustration?
- What if my customer asks for proof of
the frustration?
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Most favoured/preferred customer
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- Can I rely on the clause I have in my
contract in the circumstances?
- How do I ensure that my supplier is
complying in accordance with it?
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- Have I got any contracts in which I
prefer any customers over others?
- How do I allocate my goods/services
in accordance with them?
- Are my obligations affected by force
majeure, frustration or any other defence?
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Exclusivity and alternative supply
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- If I have an exclusive supply
arrangement and my supplier claims force majeure or any other
defence to non-supply, can I get my goods/services elsewhere
without being in breach?
- If an alternative provider would need
information (eg. IPR, confidential information, data) from my
supplier, can I compel the supplier to provide it to a third
party?
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- Can I hold my customers to exclusive
supply agreements when I am claiming force majeure, frustration or
any other defence?
- Can I refuse to let an alternative
supplier have information (eg. IPR, confidential information, data)
owned by me but needed to supply alternative goods/services for my
customer?
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Liability
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- What is my supplier's potential
liability to me under my contract (including whether the supplier
can rely on any liability caps and/or liability exclusions)?
- When and how should I make my claim
so that it is maximised but the impact on the relationship is
minimised?
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- What is my potential liability to my
customer under my contract (including whether the supplier can rely
on any liability caps and/or liability exclusions)?
- How can I mitigate it?
- What should I be doing to preserve my
relationship with my customer even though they may have a claim
against me?
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Liquidated damages
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- Can I claim LDs (and what if the
contract doesn't mention them)?
- When do they start and finish
accruing?
- How are they calculated?
- Are they an exclusive remedy –
and what does this actually mean?
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- Am I exposed to LDs?
- Can I rely on any defences such as
force majeure, frustration, dependencies on my customer?
- When do they start and finish
accruing?
- Are they an exclusive remedy –
and what does this actually mean?
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Time of the essence
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- What does this entitle me to?
- What if the contract doesn't
mention it?
- What if termination isn't the
remedy I want/isn't practicable?
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- Am I subject to a time of the essence
clause?
- If the contract is silent could one
be imposed on me by my customer?
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Termination
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- If termination is a desirable
outcome, of all my claims which one(s) is/are the best to
pursue?
- What if termination isn't the
remedy I want/isn't practicable?
- Can the Supplier contrive a
termination when I don't want one?
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- Does my customer have an ability to
terminate our contract?
- If so, what responses are available
to me?
- What if I want to terminate our
contract but my customer does not? Are any mechanisms available to
me to do this (including are common law remedies available to
me)?
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Governing law, jurisdiction and enforcement
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- How concerned should I be about the
governing law of my contract?
- How concerned should I be about the
country in which my supplier is located and how the law works
there?
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- How concerned should I be about the
governing law of my contract?
- How concerned should I be about the
country in which my customer is located and how the law works
there?
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Onward supply
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- I am both a customer of my supplier
but also a supplier to my customers. So:
- how do I balance the competing
considerations?
- what protections have I got in place
with my customers so I can "back-to-back" potential
exposure?
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