Contract managers need to manage their data better, and some upcoming solutions can take unstructured data and present it in a structured way, writes Amanda Prochaska in her blog, Procurement Unstuck.

“You will still have to review the results and train the technology to learn more about your contracts, but it has the ability to keep your data up to date and reliable.  It will also allow you to find clauses in your contracts, like the infamous assignment clause.  If you are looking to improve your contract management process, you must look at these technologies,” she writes.

She warns that if the legal team, risk team, insurance team, finance team, and stakeholders are not interested in using the solution, the contact management solution will mostly be a repository.

Read the article.

eSignLive by VASCO will present a complimentary webinar on the basics of using electronic signatures. The event will be Thursday, Dec. 8, beginning at 2 p.m. EST.

Electronic signatures are hardly a new, cutting-edge technology, eSignLive says on its website. Organizations of all sizes that are using esignatures have transformed the way they serve both internal staff and their customers and partners – offering a more convenient and efficient digital experience.

This presentation will provide an overview of the basic terminology, concepts, and laws related to electronic signatures and answer the most frequently asked questions on the topic including:

• What is the difference between an electronic signature and a digital signature?
• How can you prove who e-signed?
• What legal and compliance requirements do we need to consider?
• What ROI metrics have others reported?
• What do signers need in order to e-sign?
• How do we get started? What’s the cost? What’s the effort?
• If you are just beginning to investigate e-signatures for your organization, or if you are new to an e-signature project team, join this discussion.

Register for the webinar.

In his China Law Blog, Dan Harris writes that the dispute resolution provision in China contract may be the most important provision in the contract.

“If you put in a dispute resolution provision that makes sense, your Chinese company counter-party with whom you are contracting will be afraid to breach the contract. Conversely, if you put into the contract a dispute resolution provision that will not work, you are signaling to your Chinese company counter-party that it can breach its contract with you with impunity. Yes, it really is that important,” Harris writes in the blog post.

He explains why a provision calling for resolution in U.S. courts can sometimes be a hindrance, compared to a clause requiring dispute resolution to take place in Chinese courts.

Read the article.

Drafting an arbitration clause for an agreement may seem like a straightforward matter most of the time, writes Gilbert A. Samberg for Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. It may even be as simple as incorporating by reference an arbitration provision in another document or agreement. Or is it?

In the article, he discusses a recent federal district court ruling, Cooperativa Agraria Industrial Naranjillo Ltda. v. Transmar Commodity Group, Ltd., that may offer a cautionary lesson  before making such assumptions.

“In Naranjillo, the decisive principle was that an offeree cannot assent to an offer unless the offeree knows of its existence. The Court found that there had been no showing that Naranjillo actually knew of the existence of the arbitration clause terms,” Samberg explains.

Read the article.

When putting together a contract for the first time, many business owners may turn to standard form contracts to make agreements between customers, vendors, and other businesses, writes Corey F. Schechter of Butterfield Schechter LLP.

“Calling these contracts ‘standard’ may make it seem like they will protect your interests and provide for any contingencies that arise,” he explains. “However, many businesses find that a standard form contract ends up hurting their business.”

Because a form contract is designed to cover all bases, it may avoid language that is specific to a particular type of business, according to the article.

“Not only do these vague business contracts fail to address important issues that may arise between the two parties, they may also lead to confusion over what terms will actually govern the agreement,” Schechter writes.

Read the article.

Blockchain consortium R3 has contracted global law firm Norton Rose Fulbright to determine the contractual effect and enforceability of smart contracts, reports Finextra.

The issue is whether, or in what circumstances, smart contacts have legally binding contractual effect, are enforceable and whether disputes arising from smart contracts can be resolved by an automated resolution process built into a smart contract.

The Finextra report quotes Todd McDonald, co-founder and COO of R3: “The past few years have seen a great deal of talk about distributed ledger technologies given the profound impact they will have on the future of financial services. In order to fully realise the benefits of the technology, it is essential that we design smart contracts that are legally enforceable. Working with our partners at Norton Rose Fulbright, we’re exploring various ways to ensure smart contracts meet that threshold.”

Read the article.

Lack of precision in reinsurance contract wording has been known to engender anomalous results, points out Larry P. Schiffer in Squire Patton Boggs’ Insurance and Reinsurance Disputes Blog.

“Often a single word or phrase can cause a court or arbitrator to construe an agreement in ways unintended. In reinsurance arbitrations, when the panel majority decides how a contract operates based on its construction of a word or phrase, the losing party is likely stuck with that result even if a court might have construed the contract differently,” he writes.

He describes a recent case that illustrates his point that legalese and unnecessary words can cause a trier of fact to interpret a clause in a way that is unexpected.

Read the article.

While at first glance, an engagement with the federal government may appear lucrative, the venture comes with many strings attached, and the cost of compliance with the rules can quickly outweigh the financial benefit of the contract itself, warns Jennifer S. Cluverius in an article on the website of Nexsen Pruet, LLC.

She writes that a lack of experience can lead a federal contractor or subcontractor can encounter these pitfalls.

The article discusses some of the most costly and often-unnoticed employment-related compliance obligations.

Read the article.

In a dispute that touches on the intersection of copyright, contract law and cloud technology, the Second Circuit affirmed the dismissal of copyright claims against Barnes & Noble related to ebook samples stored on a user’s B&N-provided cloud-based locker, writes Jeffrey Neuburger in Proskauer Rose LLP’s New Media and Technology Law Blog.

“Notably, the Second Circuit dismissed the case on contractual grounds, declining the opportunity to opine on two important modern copyright doctrines that are often implicated when users store copyrighted content on the cloud,” he explains.

Neuburger discusses the case, concluding with, “[T]he dispute underscores the importance for copyright holders to understand the scope of any content distribution license involving cloud storage by users, particularly when broad language is used with respect to the rights of the licensee.”

Read the Proskauer article.

Practical Law and Epstein Becker Green attorneys will present a free, 75-minute webinar providing insights into recent developments and expected trends in the evolving legal landscape of trade secrets and non-competition agreements on Wednesday, Nov. 30, 2016, at 1 p.m. EST. This webinar will focus on how to navigate this developing area and effectively protect client relationships and proprietary information.

Epstein Becker lawyers Peter A. Steinmeyer, Robert D. Goldstein and Anthony J. Laura will be presenters.m The moderator will be Barbara J. Harris, Senior Legal Editor, Practical Law Labor & Employment.

Topics will include:

• The Defend Trade Secrets (DTSA), including the new federal remedies available to employers and the steps they need to take to fully benefit from them.
• Newly passed state statutes addressing restrictive covenants, including who can enter into them, industry restrictions, and temporal restrictions.
• Recent decisions regarding what constitutes adequate consideration for a non-compete.
• Interesting developments determining choice of law issues, including a new California statute restricting choice of law provisions.
• Administrative agency developments, including agency enforcement actions cracking down on non-competes.

A short Q&A session will follow.

Register for the webinar.

SpringCM has published an on-demand webinar titled “Get Control of Your Contracts!” that explains how Contract Lifecycle Management (CLM) provides end-to-end visibility into contractual risks and obligations.

“To ensure your business is well-positioned for success in the 21st century, transforming critical business processes like contract management is pivotal,” the company says on its website. “Contracts are at the center of business success since they are directly tied to revenue generation.”

Guest speaker Andrew Bartels, Vice President and Analyst at Forrester Research Inc., discusses the benefits of:

• A central repository for contracts
• Contract reporting and analysis
• Automating the contract process
• And so much more!

Watch the on-demand webinar.

When parties enter into a domestic commercial contract, they may not think critically enough about what will happen if the relationship goes south and how the contract provisions that they chose to include—or did not choose to include or accepted without negotiation—will affect how and where they resolve a dispute and shape the remedies to which they may be entitled, according to an article on the website of K&L Gates.

“Contractual provisions that parties choose to include in their agreement depend on a number of factors including, among others, the identity of and relationship between the parties and the size and nature of the transaction,” write Lauren Garraux, Jacquelyn S. Celender.

In their article, they identify and discuss four types of provisions commonly included in commercial contracts that can have significant ramifications for contracting parties if a dispute between them arises.

Those types include alternative dispute resolution provisions, choice of forum and law provisions and jury trial waivers, damages clauses, and insurance provisions.

Read the K&L Gates article.

It seems easy to just cut and paste and/or use prior agreements and roll them over into a new situation when drafting a contract … but it may cost you more in the long run if and when something goes wrong, cautions Anette Beebe of Beebe Law, PLLC.

In her article, she discusses some of the boilerplate clauses that are typically at issue in a contract, including: choice of law and/or choice of forum clauses, arbitration clauses, jury trial waivers, severability clauses, cooperation clauses, integration/merger clauses, warranties, damages clauses, and indemnification clauses.

Read the Beebe Law article.

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While consumers may not have many choices when signing agreements that contain arbitration clauses, commercial parties often negotiate every last term of their agreements, according to a post on Shutts & Bowen LLP‘s website.

“This includes whether to require the parties to arbitrate their disputes or take them to court. There are advantages to each, so here are five things to consider when deciding whether to include an arbitration clause in a real estate contract, such as a purchase and sale agreement or lease,” write Al LaSorte, Matthew R. Chait and Matthew S. Sackel.

Those considerations include time, money, convenience, discovery and rules. The authors discuss the finer points of each one.

Read the Shutts & Bowen article.

Image by NY Photographic

When it comes to arbitration provisions in employment agreements, one size does not fit all. Arbitration has significant advantages and disadvantages. Deciding whether to include an arbitration provision in an employment agreement requires thorough consideration based upon an employer’s individual circumstances, according to a post in Trenam Law’s Employment Law Update.

The article discusses some of the pros and cons of adding such provisions.

Among the pros are class-action waivers, potential time savings and privacy. On the other hand, there’s the consideration of costs, because some employment arbitration regimes allocate many of the costs to the employer.

Read the article.

The doctrine of void contracts arose recently in an employment case in Florida, Griffin v. ARX Holding Corporation, writes Jason M. Knott for Zuckerman Spaeder LLP.

In that case, the plaintiff, Nicholas Griffin, had a prior conviction for extortion. ARX Holding hired him as its chief financial officer in 2009. But under federal law, an individual commits a crime if he has been convicted of a felony involving dishonesty and then willfully participates in the insurance business. Knott explains that Griffin could have obtained a waiver from insurance regulators, but he was unable to do so.

ARX fired Griffin, who sued, seeking an unpaid $215,000 bonus. But a court ruled that his employment contract was void from the outset.

Read the article.

Image by Yoel Ben-Avraham

It’s common to see SaaS (software as a service) startups initially price their products on a monthly basis, then add an enterprise “Call Me” plan which hides behind it an annual contract. As the business increases its price point, it may eventually book contracts spanning two, three or even five years, explains Tomasz Tunguz, a venture capitalist at Redpoint.

“This pricing pattern has a certain rationale to it. It enables an early-stage software company to rapidly gather feedback,” he writes in the article. “At the outset, when the business prices on a monthly basis, the startup is looking for as much information about the strength of their product market fit as possible.”

“Annual contracts bring predictability to a SaaS startup. Revenues committed for 12 months, and the cash flow characteristics of annual prepay contracts are an enormous boon for the business, reducing the total amount of financing the might have to raise.”

Read the article.

A well-drafted arbitration provision can save companies from expensive and time-consuming class litigation, two defense attorneys say in a report published by Bloomberg BNA.

Mayer Brown LLP partners Kevin S. Ranlett and Archis A. Parasharami of Washington say advise that companies and their lawyers should draft service and employment contracts with recent U.S. Supreme Court rulings on arbitration.

The two helped client AT&T Mobility draft an arbitration provision that was ultimately upheld by the U.S. Supreme Court in one of those landmark cases, AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011).

The sections on the three tips are headed: “Don’t Create Uncertainty,” “Include Consumer/Employee-Friendly Terms,” and “Avoid Potentially Unconscionable Terms.”

Read the article.

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The U.S. Securities and Exchange Commission, along with the U.S. Department of Justice and Brazilian authorities, have reached a global settlement that requires aircraft manufacturer Embraer S.A. to pay more than $205 million to resolve alleged violations of  the Foreign Corrupt Practices Act, reports 24/7 Wall St.

The SEC alleged Embraer made more than $83 million in profits as a result of bribe payments from its U.S.-based subsidiary through third-party agents to foreign government officials in the Dominican Republic, Saudi Arabia and Mozambique, including $3.52 million in bribes to a Dominican Republic air force official to secure a military aircraft contract in that country. Another allegation claimed Embraer paid $1.65 million in bribes to an official in Saudi Arabia.

“Under the settlement, Embraer must pay a $107 million penalty to the DOJ as part of a deferred prosecution agreement, as well as more than $98 million in disgorgement and interest to the SEC., reports Chris Lange.

Read the article.

When a party breaches a contract and the contract does not contain a valid liquidated damages clause, the non-breaching party may be entitled to compensatory damages. Charles B. Jimerson and Kayla A. Haines of Jimerson & Cobb, P.A. explain that the appropriate measure of damages arising from a breach of an enforceable contract is usually “the difference between the value expected from the contract and the value actually received by the non-breaching party.”

In their article, they write: “Many factors can impact the recoverability of consequential damages, such as common law implied warranties, or indemnity provisions. Therefore, when entering into a construction contract, parties should carefully evaluate the proposed contract language to fully comprehend the risks they are about to assume. In order to prevent any extensive consequential damages that might result from a construction project, parties should use whatever power they may have while creating their contract to predestine certain expenses that a party would incur in the event of pervasive defects or significant project delays.”

Read the article.