1. Read the attached assignment brief.2. Read assessment criteria.3. Read the attached contract.4. Use the attached slides as your main source. you can do the whole assignment by using it only.5. Start from the attached word file. it contains organized outline and tables ready for filling.6. there are some notes in the pdf files that point to the slides numbers that have the answers. check the pdf notes.
1. Introduction: preliminary information What is the type of the business? Are you writing from the viewpoint of the buyer or the seller? Briefly describe the goods/services in your chosen contract 1.1 Identify what is required to create a valid and enforceable contract in law. 1.2 Risks: 1.2.1 Identify the risks that your real or fictitious organization faces in the contract 1.2.2 Assess and prioritize these risks 1.2.3 Suggest ways to mitigate these risks Priority Risk Identification Mitigation 1.2.4 Do you think that your organization will be successful in mitigating these risks? Why? 1.3 Negotiation: 1.3.1 Critically analyze a range of strategies that you could use to negotiate the contract. Include a discussion on what key risks you identified and how you sought to mitigate them in this negotiation stage. 1.3.2 How have you sought to achieve the objectives set in the organization’s strategic plan? 2. Key boilerplate terms: 2.1 List the key boilerplate (that is, legal or ‘fine-print’) terms in your chosen contract (provide 4-8). 2.2 Why did you choose them? 2.3 Briefly describe each boilerplate term and its function. Key boilerplate term Why it was chosen Description Function 2.4 Do you think that the term will achieve the function as just stated? Why? 3. Conclusion: Conclude the contents. What did you learn? 1 © 2018, The Risk Doctor (www.TheRiskDoctor.com.au) Analysis of a Sample Contract • This sample contract is taken from Cyril Jankoff’s book Manage Your Contracts - A practical start to finish guide for contracting professionals. • Boilerplate clauses can be very detailed. As this analysis is for education purposes normally the simplest possible clause has been chosen to ensure that the reader is made aware of some of the key issues unobstructed by detail. AGREEMENT THIS AGREEMENT is made the day of xxxx, 20xx. [see Paragraph 7, above, for details on how to date a contract] BETWEEN: EDUCATE-EM BUSINESS SCHOOL PTY LTD (ACN 123 456 789, ABN XX) of 567 Jones Street Melbourne 3000 Victoria Australia (“the Company”) of the First part; -AND- JOHN DORY (ABN 987 654 321) and ANNE CHOVIE (ABN 246 246 246) both of 123 Smith Street Perth 6000 Western Australia (“the Contractors”) of the Second part. [For a discussion on this Clause see Paragraph 1, above]. BACKGROUND: [For a discussion on this Clause see Paragraph 2, above]. A. The Company runs a college of higher education called Educat-Em Business School Pty Ltd at 567 Jones Street Melbourne 3000 Victoria Australia Australia for undergraduate and postgraduate students and provides other educational activities. B. The Contractors have expertise in creating strategic plans in the higher education setting. The Company wishes to engage the Contractor to provide a strategic business plan on the following terms and conditions. IT IS AGREED as follows: 1. Definitions [For a discussion on this Clause see Paragraph 3, Note 2, above]. In this document, unless a contrary intention appears, the following words have the meanings given [For a discussion on this Clause see Paragraph 3, above]: ‘Agreement’ means this agreement and incorporates all Schedules. ‘Business Day’ means a day other than a Saturday, Sunday or public holiday in the State of Victoria, Australia. ‘Confidential Information’ means but is not confined to trade secrets, research or development information, client lists, sales and marketing information, all technical, commercial, financial or other information (whether oral, written, electronic, or in any other form) disclosed by a party during the term of this Agreement but excluding any information which is at the time of disclosure generally and publicly available or becomes lawfully in a party’s possession wholly independently of the other party. ‘Existing Intellectual Property Rights’ means any Intellectual Property Rights which are owned by a party, or which a party has a right to use or are developed independently of the Services which exist at the date of the Agreement and which are incorporated into a Report. 2 © 2018, The Risk Doctor (www.TheRiskDoctor.com.au) ‘Fees’ means the fees payable by the Company to the Contractors specified in the Schedule. ‘Insolvency Event’ means: (a) For a party being a corporation: (i) being under administration, in liquidation or provisional liquidation; (ii) having a receiver, manager or controller or analogous person appointed to it or any of its property; (iii) failing to comply with a statutory demand for payment; (iv) being unable to pay its debts or otherwise insolvent; (v) entering into a compromise or arrangement with members or creditors; and (b) For a party that is an individual that party: (i) dies; (ii) becomes of unsound mind; (iii) becomes bankrupt; (iv) enters or proposes to enter into an arrangement or compromise with creditors. ‘Intellectual Property Rights’ means copyright, trade mark, design, patent, semiconductor or circuit layout rights, trade, business or company names or other proprietary rights, or any rights to registration of such rights existing in Australia whether created before or after the date of this Agreement. ‘New Intellectual Property Rights’ means any Intellectual Property Rights which are brought into existence by or on behalf of the Contractor in the course of performing this Agreement. ‘Report’ means the final report that is required by the date specified in the Schedule. ‘Schedule’ means a schedule to this Agreement. ‘Services’ means the services specified in the Schedule. 2. Services [For a discussion on this Clause see Paragraphs 4.1 and 6, above]. 2.1 Obligations of the Contractors The Contractors will provide the Company with the services set out in the Schedule to this Agreement in accordance with the timeframe set out in the Schedule 2.2 Additional Services Where the Company wishes to order additional services from the Contractors, those services will be set out in a Schedule to be agreed between the parties, which is to be substantially in the form of the Schedule to this Agreement, and except for the fee and due date the Schedule will be subject to the terms of this Agreement. 3. Payment 3.1 Due date for Payment The Company will pay the Contractors the fees specified in the Schedule within 30 Business Days of receipt of a correctly rendered tax invoice. 3.2 Delaying of Payment The Company may delay payment until it is satisfied with the quality and extent of the Report. 3.3 GST If the supply of services by the Contractor is subject to GST the agreed Fee will be increased by the GST, and the Company will pay the Contractor both the agreed Fee and the GST as herein described. [For a discussion on this Clause see Paragraph 4.2, Clause 22, above]. 3 © 2018, The Risk Doctor (www.TheRiskDoctor.com.au) 4. Intellectual Property, Confidential Information and Moral Rights 4.1 Intellectual Property Rights [For a discussion on this Clause see Paragraph 4.2, Clause 7, above]. All rights and title to any Intellectual Property Rights shall vest in the Company. Intellectual Property Rights including copyright in any Reports created under this Agreement are hereby assigned by the Contractors to the Company. This Agreement does not affect Existing Intellectual Property Rights but only for New Intellectual Property Rights. 4.2 Confidential Information [For a discussion on this Clause see Paragraph 4.2, Clause 8, above]. The Contractors will not without the written consent of the Company, or unless legally required by a court of law, during the period of this contract and for any time thereafter, use or divulge to any person for his own or any other person’s benefit any Confidential Information in connexion with the Company arising out of this Agreement with the Company. 4.3 Intellectual Property Rights [For a discussion on this Clause see Paragraph 4.2, Clauses 7 & 10, above]. The Contractor warrants that the performance of the Services and the Report to the Company will not infringe the Intellectual Property Rights of any third party. 4.4 Moral Rights [For a discussion on this Clause see Paragraph 4.2, Clause 11, above]. The Contractor acknowledges and agrees that the Company will acknowledge the Contractors’ authorship or moral rights in the Report. 5. Relationship Between the Parties [For a discussion on this Clause see Paragraph 4.2, Clause 2, above]. The Contractors are independent contractors and cannot bind the Company in any way. 6. Force Majeure [For a discussion on this Clause see Paragraph 4.2, Clause 18, above]. Neither party will be, or deemed to be, in default of in breach of any Agreement as the result of the effects of Force Majeure. Force Majeure will include any cause beyond the reasonable control of either party, and include, but are not limited to, Acts of God, strikes, insurrections, riots, wars, terrorist acts and Government restrictions. 7. Termination [For a discussion on this Clause see Paragraph 4.2, Clauses 19 and 20, above]. 7.1 Termination Without Cause Either party may terminate this Agreement by giving thirty (30) calendar days written notice to the other party of their intentions to terminate 7.2 Termination With Cause A party (‘the terminating party’) may immediately terminate this Agreement by notice in writing to the other party if: (a) the other party is in breach of any term of this Agreement and such breach is not remedied within 14 calendar days’ of receipt of written notice from the terminating party, specifying the breach and requesting rectification; or (b) the other party becomes subject to any form of Insolvency Event. 7.3 Return of Records upon Termination Upon the termination of the Agreement, the Contractor will hand to the Company all Reports which have been paid for by the Company by the date of termination. 7.4 Non-effect of Termination Termination of this Agreement does not affect: (a) a party’s rights or claims which arise before termination; or (b) any rights or claims arising under Clauses 4.1 and 4.3 (Intellectual Property) or Clause 4.2 (Confidentiality). 8. Disputes [For a discussion on this Clause see Paragraph 4.2, Clause 12, above]. 8.1 Resolution of Disputes If a dispute arises in anyway in connection with this Agreement,