Contract Drafting Class 14 Thurs. Mar. 1

1. Contract DraftingClass 14Thurs. Mar. 1 University of Houston Law Center D. C. Toedt III

2. In the news

3. Rush Limbaugh & Sandra Fluke What contract provisions would you draft? Photo from Washington Times Web site http://goo.gl/rAUmr

4. Dilbert on why companies don’t like off-the-street ideas What contract provisions would you draft?

5. Syntactic sins

6. 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 ….

7. Experiment

8. Apgar-like scores for contract provisions ④ Nice to have ⑤ Important ⑥Gotta have it ⓪ Possible deal-killer ① Seriously dislike it ② Not wild about it ③ Neutral

9. Apgar-like scores for contract provisions Marking 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: ②Receiving party score: ⑤Disclosing party score: ③ Receiving party score: ⑤

10. Z&B Exercise E

11. 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.

12. 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!) N/A: Moral rights are non-assignable Moral rights are assigned to HP Moral rights are waived

13. Consulting Agrmt (Z&B p. 118) What happens if Landa incorporates IP owned by him into some LEP IP that he comes up with? HP owns the Landa-owned IP HP gets a royalty-free right to use the Landa IP HP will negotiate a license to use the Landa-owned IP

14. Consulting Agrmt (Z&B p. 122) Assignment – which party must obtain the other party’s consent to assign? Both HP only Landa only

15. Consulting Agrmt (Z&B p. 122) Assignment – can a right under the Agreement be assigned without consent?? Yes, by HP only Yes, by Landa only No

16. Consulting Agrmt (Z&B p. 122) Assignment – what would the non-assigning party’s remedy be for a breach? Act as though the assignment didn’t happen (refuse to deal w/ assignee)? Sue for damages for breach? Terminate the agreement for breach? Sue to rescind the agreement for breach?

17. 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 ….

18. 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.

19. Consulting Agrmt (Z&B p. 123) The choice of New York courts in § 17 is: Enforceable – courts generally honor contractual choices of forum Not enforceable – public policy precludes an employer from forcing an employee to be sued in a remote jurisdiction Who knows?

20. Consulting Agrmt (Z&B p. 123) The choice of New York law in § 17 is: Enforceable – courts generally honor contractual choices of law Enforceable – NY Gen. Obl. Law § 5-1401 says so Not enforceable – public policy precludes enforc-ing non-competes that are contrary to local law Who knows?

21. 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 ….