Contract DraftingClass 14Thurs. Mar. 1

University of Houston Law Center

D. C. Toedt III

In the news

Rush Limbaugh & Sandra Fluke

What contract provisions would you draft?Photo from Washington Times Web site http://goo.gl/rAUmr

Dilbert on why companies don’t like off-the-street ideas

What contract provisions would you draft?

Syntactic sins

Any problem(s) with this?

Borrower will have until March 15, 2012, to provide Lender with a copy of its financial statements for its fiscal year ended December 31, 2011 ….

Experiment

Apgar-like scores for contract provisions

⓪ Possible deal-killer

① Seriously dislike it

② Not wild about it

③ Neutral

④ Nice to have⑤ Important⑥ Gotta have it

Apgar-like scores for contract provisionsMarking of Confidential Information is required

For information to be considered Confidential Information, it must be marked with a reasonably-prominent, visually-readable notice, such as (for example) "Confidential information of [name]" or "Subject to NDA."

Disclosing party score: ② Receiving party score: ⑤

Disclosing party score: ③ Receiving party score: ⑤

Z&B Exercise E

Consulting Agrmt (Z&B p. 114)

How much IP ownership does Landa have of whatever he comes up with during the term of the agreement?

Hint: Compare p. 117, § 5(b) with § 5(a); be sure to read the definition of “LEP” in the Preamble.

Consulting Agrmt (Z&B p. 118)

What happens to Landa’s moral rights in any LEP IP he comes up with? See p. 118, § 5(c) (buried!)

A. N/A: Moral rights are non-assignable

B. Moral rights are assigned to HP

C. Moral rights are waived

Consulting Agrmt (Z&B p. 118)

What happens if Landa incorporates IP owned by him into some LEP IP that he comes up with?

A. HP owns the Landa-owned IP

B. HP gets a royalty-free right to use the Landa IP

C. HP will negotiate a license to use the Landa-owned IP

Consulting Agrmt (Z&B p. 122)

Assignment – which party must obtain the other party’s consent to assign?

A. Both

B. HP only

C. Landa only

Consulting Agrmt (Z&B p. 122)

Assignment – can a right under the Agreement be assigned without consent??

A. Yes, by HP only

B. Yes, by Landa only

C. No

Consulting Agrmt (Z&B p. 122)

Assignment – what would the non-assigning party’s remedy be for a breach?

A. Act as though the assignment didn’t happen (refuse to deal w/ assignee)?

B. Sue for damages for breach?

C. Terminate the agreement for breach?

D. Sue to rescind the agreement for breach?

Consulting Agrmt (Z&B p. 122)

Rewrite the following language:

Neither this Agreement nor any right hereunder or interest herein may be assigned or transferred by … without the express written consent of ….

Consulting Agrmt (Z&B p. 122)

Rewrite the following language:

Landa warrants that he will not engage the services of independent contractors to provide any Services under this Agreement without the prior written consent of HP.

Consulting Agrmt (Z&B p. 123)

The choice of New York courts in § 17 is:A. Enforceable – courts generally honor contractual

choices of forum

B. Not enforceable – public policy precludes an employer from forcing an employee to be sued in a remote jurisdiction

C. Who knows?

Consulting Agrmt (Z&B p. 123)

The choice of New York law in § 17 is:A. Enforceable – courts generally honor contractual

choices of law

B. Enforceable – NY Gen. Obl. Law § 5-1401 says so

C. Not enforceable – public policy precludes enforc-ing non-competes that are contrary to local law

D. Who knows?

Consulting Agrmt (Z&B p. 123)

Rewrite the following language:In any court action at law or equity which is brought by one of the parties to enforce or interpret the pro-visions of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees ….