Module 1: Pre-contractual Matters
- Defining the objectives of the contract
- Due diligence
- Forming the team – structuring the core group and the support group
- Authorization for negotiation and decision making
- Not yet a contract – ‘the subject to formula’
- Letters of intent, letters of comfort and Memoranda of Understanding
Module 2: Forming the Contract
- When must an agreement be in writing and when can it be oral
- The use of the internet and electronic media in the formation of a contract
- What are the formalities to be observed in the execution of an agreement
- Distinguishing an offer from an invitation to treat
- What is an acceptance and how much an acceptance take place
- The significance of consideration and the utilisation of a deed
- What is an intention to create legal relations
- The importance of the capacity to contract
Module 3:Vitiating Factors
- Fraudulent, negligent and innocent misrepresentation
- Mutual, common and unilateral mistake
- Duress and undue influence
- Illegality and contracts in restraint of trade (non-competition and non-solicitation clauses)
- Remedies
Module 4: The Contents of a Contract
- The difference between representations and terms
- Express and implied terms
- Incorporation of terms
- Terms that allow for termination and terms that do not
Session 5: Structuring the Contract
- Identification of parties
- Date and effective date
- The role of the recitals and the titles of the different clauses
- Exhibits and their relationship with the precedence clause and the rest of the contract
Module 5: Contract Scope and Clauses
- Defining the scope of the contract
- Drafting suitable definition clauses
- When does the contract begin and end
- Payment terms – should they be upfront, regular or royalty payments
- Time for payment
- Currency clauses – fluctuation of currencies
- Withholding tax – cross-border transactions
Module 6: Liability and Damages Clauses
- The significance of the indemnity clause
- Exclusion and limitation of liability clauses – their effectiveness and use
- The Unfair Contract Terms Act
- Penalties and liquidated damages
Module 7: Frustration and Force Majeure
- The meaning of the term ‘frustration’ and its consequences
- Drafting a suitable ‘force majeure’ clause and its importance in the contract
Module 8: Confidentiality
- Non-disclosure agreements
- Drafting suitable confidentiality clauses
- Injunctions and damages
- Audit rights
Module 9: Rights of parties
- Privity
- Third-party rights under a contract
- Agency
- Assignment
- Novation
Moduole 10: Termination
- For convenience, for breach and upon the occurrence of a defined event
- After being given the opportunity to rectify the breach
- Change of management or ownership
Module 11: Consequences of Termination and Remedies
- Remoteness of damage
- Mitigation
- Financial and other consequences
- Payment for third party replacement
- Remedies
Module 12: Dispute Resolution
- The differences between a governing law and a jurisdiction clause
- Exclusive and non-exclusive jurisdiction
- Litigation, arbitration and mediation – the differences, strengths and weaknesses of each
- Enforcement