A recent decision in Perry Bartsch Jr., Constr. Co. v. Dept. of the Int., CBCA 4865, 5071 (December 8, 2016) helps contractors understand the scope and contours of a release of claims in a contract, reports Covington & Burling LLP in an article published in the firm’s Inside Government Contracts blog.

Chase Johnson and Justin Ganderson write that the case offers  important guidance about how to draft a release in an effective and narrow way, and the types of factors that the CBCA will consider when interpreting a release. Bartsch discusses the issue of whether an apparent global release of claims, contained in just one of many contract modifications, can extinguish all potential claims against the government.

The authors describe the case in detail and conclude with three points that contractors can consider to help ensure they are entering into a release that reflects their intention.

Read the article.

Dentons has published the latest edition of its “Government Contracts Legislative and Regulatory Update,” a summary of the relevant changes that took place during November.

Highlights of the report include:

• Compromise version of the National Defense Authorization Act for FY 2017 nears completion
• FAR Council issues a final rule requiring representation of contractor greenhouse gas emission disclosures
• BIS issues a final rule to remove arms embargoes against certain countries
• DoD proposes a rule that would increase contractors’ evaluated bid prices by including allowable IR&D expenses

See the complete report.

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Nexsen Pruet attorneys Peter Santos, Christy Myatt, and David Garrett led a recent presentation on cross-border contracts to members of the Association of Corporate Counsel Research Triangle Area.

According to a post on JDSupra, the team explored how more than 10,000 North Carolina businesses export more than $31 billion worth of merchandise every year and support more than 164,000 jobs.

Some of the general topics included: common law and civil law countries are different; cultrual differences can lead to legal differences; and comparing U.S. contracts to other nations.

Read the presentation.

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Corridor Company will present a complimentary 45-minute webinar outlining recommendations for planning a contract management roadmap.

The webinar will be Wednesday, Jan. 18, at 11 a.m. Eastern time.

On its website, the company says the webinar will address specific topics including:

• Client Readiness and Contract Maturity Goals
• Implementation Considerations
• Delivery Considerations
• Internal and External Participants and Responsibilities
• Ensuring the Success of your Constituents
• ROI Justification

Register for the webinar.

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In an article posted on Commercial Property Executive’s website, Elizabeth Levin of Manatt, Phelps & Phillips explores the implications of contracts and lease agreements pertaining to co-working and short term rental arrangements.

The central tenet of such agreements has not been tested in courts, Levin explains.

“Though the proprietors of co-working spaces and the owners of short-term rental properties have tried to make clear that these are not traditional landlord-tenant arrangements, that premise has not been truly tested, and the question of how a court would treat such an arrangement looms large over those drafting the contracts that govern these arrangements,” she writes.

Read the article.

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Kilpatrick Townsend & Stockton LLP has published a summary of key takeaways from a recent presentation on technology contract drafting and negotiating to the Charlotte Chapter of the Association of Corporate Counsel.

Josh Ganz, a Kilpatrick Townsend partner, and Michelle Tyde, counsel, made the presentation.

They discussed some of the basics, such as the scope of solution and services being provided, the level of performance quality to which the customer intends to hold the vendor, the level of risk the customer intends to shift to the vendor, and the price the customer will par for the solution or services.

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Data security must extend beyond the scope of a company’s own office or network and to any of the company’s service providers that have access to its data, warns Armand J. (A.J.) Zottola in Venable LLP’s Digital Rights Review.

“A company can be held responsible for a data breach involving its own data, regardless of whether the company is directly responsible for managing its own data,” Zottola writes. “The risks associated with sharing data with a service provider are best managed through the utilization of contract provisions governing information security.”

In his article, he offers guidelines to consider throughout the process of drafting information security provisions to govern the management, handling, and control of a company’s data.

Headings for those guidelines include: research applicable legal requirements, set and meet minimum security standards through the establishment of an information security program, ensure the service provider isn’t misusing data, determine security breach response procedures, and create audit requirements.

Read the article.

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All parties involved with a construction contract need to explore which dispute resolution option is right for them and the project, and also ensure their contract terms are as clear as possible to avoid potential problems down the road, writes Kim Slowey in Construction Dive.

In her article, Slowey covers mediation, arbitration vs. litigation, and the importance of planning.

She quotes Margaret Greene, partner and leader of the construction planning practice group at Honigman Miller Schwartz and Cohn in Detroit, who counsels that perhaps the most important aspect of dispute resolution is to minimize the chance of conflict before disagreements rise to the level of “disputes” or “claims.”

Read the article.

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Employers who don’t want employees to arbitrate employment-related claims shouldn’t bury the agreement in an employee handbook that includes a disclaimer stating that the handbook is not a contract, advises Business Management Daily.

That’s because a court could conclude that the conflicting language means the arbitration agreement isn’t binding.

The article describes a recent case in which an employer asked the court to send the case to arbitration, arguing that the employee knew about the arbitration requirement that was included in a handbook.

“The court didn’t see it that way. It reasoned that to be binding, the arbitration clause had to demonstrate clear mutual assent,” according to the article.

Read the article.

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It is vital that a custom electronics integration or security company’s employees follow proper procedures to make sure the sales agreement is legally valid, but that may not be as straight-forward as it seems, writes Jason Knott for CEPro.

He quotes legal expert Ken Kirschenbaum of Kirschenbaum & Kirschenbaum when he writes that there is certain language related to signatures in an agreement that might appear to protect the company, but it actually can hurt.  For example, an agreement should not include a provision saying something like, “this contract is not valid unless signed by an officer of the Company.”

“Unfortunately courts do not always treat the [signature] omission as a two-way street,” Kirschenbaum tells Knott.

Read the article.

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A unanimous panel of the Sixth Circuit recently rejected a manufacturer’s attempt to compel arbitration under an expired contract in Linglong Americas, Inc. v. Horizon Tire, Inc., reports Butler Snow LLP.

Erin Palmer Polly explains that the manufacturer and its distributor entered into a collaboration agreement that contained an arbitration clause.

“The agreement expired and was not renewed, but the manufacturer and its distributor continued to work together and continued to make various representations of continued involvement,” she writes. “Approximately three years after the agreement expired, the parties’ relationship deteriorated and resulted in a federal court lawsuit.  The manufacturer attempted to compel arbitration and pointed to the arbitration provision in the collaboration agreement.”

She points to two important lessons to be learned from the case.

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The Arbitration Nation blog provides a good example of how drafting arbitration agreements can go wrong, pointing to the Tenth Circuit’s ruling in Ragab v. Howard, in which a majority of the panel concluded that because the parties had six differing arbitration agreements, they had never reached a meeting of the minds on arbitration and their dispute would stay in court.

“The parties had six agreements that governed their business relationship. Each agreement had an arbitration agreement,” writes Liz Kramer in the Stinson Leonard Street blog. “But, those arbitration agreements did not provide for the same set of rules to govern the arbitration, or the same method of choosing an arbitrator, or the same notice period before arbitration, or the same opportunity to recover attorneys’ fees.  Even so, when Mr. Ragab sued the defendants for misrepresentation and statutory violations, the defendants moved to compel arbitration.”

Read the article.

Nick Szabo, the man widely credited with inventing the smart contract concept, says smart contracts will not rid the world of lawyers, despite the greatest efforts of blockchain innovators, reports CoinDesk.

Szabo gave the keynote address at the Smart Contracts Symposium at Microsoft’s New York headquarters.

Reporter Michael del Castillo quoted Szabo as saying, “Lawyers worried about losing their jobs to robots, you’re actually doing something that’s mostly complimentary to a smart contract. Smart contracts are mostly making possible new things that haven’t been done before.”

Read theCoinDesk article.

Cloud-based services and data services are creating new contract challenges for service providers— and their customers, write Glynna Christian and Molly Bright in an article posted on the website of Kaye Scholer.

“Many of these issues relate to the myriad changing pass-through terms required by a service provider’s own network of underlying agreements with the sub-providers of the services and data needed to make the service provider’s cloud-based services operate,” they write. “These agreements may include arrangements with cloud infrastructure providers, software providers and data providers that often require the service provider to ensure that its customers comply with acceptable use policies, limitations of liability, indemnification and intellectual property licensing or other content requirements.”

In some cases, a service provider can incorporate these terms into its customer agreements by embedding hyperlinks to these contract terms in its customer agreements.

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Transportation companies have become prime targets for patent infringement lawsuits in recent years, write Jonathan Todd and Justin P. Clark for Benesch, Friedlander, Coplan & Aronoff.

“The best way a transportation and logistics provider can protect itself from the license fees, court costs, and damages is to carefully negotiate the technology agreements that support hardware and software license, lease, or development,” they explain.

In their article, they discuss technology contract tips, offering the most important user-favorable clauses that can often help protect the buyer or licensee of technology.

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Stacey Lantagne uses a recent Florida case to illustrate the importance of specificity when drafting contracts.

Writing in her ContractsProf Blog, she outlines the history of Boardwalk at Daytona Development, LLC v. Paspalakis, “a case where the court, faced with an ambiguous description of the land at issue in a contract, just threw up its hands in frustration.”

The case involves a settlement agreement in a land dispute. The agreement failed to specify a legal description or street address for the property at issue. That failure came to light when Boardwalk conveyed a parcel — pursuant to the agreement — which the appellees found to be inferior to the one they expected to receive.

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Business Insider summarizes the major findings of a new white paper by blockchain consortium R3 and global law firm Norton Rose Fulbright on smart contracts.

The white paper explores whether blockchain-based “smart contracts” are legally binding under current legislation in different countries.

The Business Insider article discusses the variety of possible smart contract models, the effect jurisdiction has on whether smart contracts are legally binding, the enforceability issues resulting from smart contracts’ underlying technology, and the importance of embedding dispute resolution mechanisms to reduce friction.

Read the Business Insider article.

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.

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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.