Navigating and Negotiating Contracts Presented by Krista L. Newkirk, Associate General Counsel

First Things First Correct parties Correct parties Are both names correct? Are both names correct? The University of North Carolina at Charlotte The University of North Carolina at Charlotte Is the contract with the correct entity? Is the contract with the correct entity? Attachments Attachments Do you have them? Do you have them? Should they be incorporated into the agreement? Should they be incorporated into the agreement? Who will sign? Who will sign? Policy Statement #35 Policy Statement #35 What difference does it make? What difference does it make?

Essential Terms Who? Who? How long? How long? Who can terminate? Who can terminate? How will it be renewed? How will it be renewed? Consideration Consideration How much is being paid? How much is being paid? What are they paying for? What are they paying for? Where will the contract be fulfilled? Where will the contract be fulfilled?

Deal Breakers Waivers of Sovereign Immunity Waivers of Sovereign Immunity Choice of law Choice of law Assumption of risk/liability for damages that go beyond statutory limitations Assumption of risk/liability for damages that go beyond statutory limitations Assignment of payment (violation of exclusive emoluments) Assignment of payment (violation of exclusive emoluments) Payment of attorney fees, court costs or other litigation expenses Payment of attorney fees, court costs or other litigation expenses

More Deal Breakers Indemnification Indemnification Personal liability for signer or other employees Personal liability for signer or other employees Non-compete a/k/a promise not to hire other party’s employee Non-compete a/k/a promise not to hire other party’s employee Conflicts of interest Conflicts of interest Arbitration Arbitration

The Contract Checklist is Your Friend General Counsel’s Website General Counsel’s Website Sets out the deal breakers and other terms Sets out the deal breakers and other terms Links to language to negotiate terms Links to language to negotiate terms Provides alternative language for troublesome terms Provides alternative language for troublesome terms Links to Links to valuable information (e.g. purchasing manual, policy statements) valuable information (e.g. purchasing manual, policy statements) Not so valuable information (my phone number) Not so valuable information (my phone number)

Risky Business Limitation of other party’s liability Limitation of other party’s liability Acceleration Clause Acceleration Clause Late payment penalties Late payment penalties Clauses that alter legal protections Clauses that alter legal protections Shorten statute of limitations Shorten statute of limitations Provide for injunctive relief Provide for injunctive relief Provide for liquidated damages or cancellation fees Provide for liquidated damages or cancellation fees Repossession of property or security interest Repossession of property or security interest

Contract Advisory Form If contract reviewer wants to accept “risky” language If contract reviewer wants to accept “risky” language Ensures that the decision is made at the appropriate level Ensures that the decision is made at the appropriate level Requires contract reviewer to obtain approval Requires contract reviewer to obtain approval Notification that legal counsel advises against such clauses Notification that legal counsel advises against such clauses Notification that any resulting damages or costs will be paid from the signatory’s budget Notification that any resulting damages or costs will be paid from the signatory’s budget Retain copy in file with contract Retain copy in file with contract

Common Sense Reminders Reviewer should have the most knowledge of the facts – identify the risks Reviewer should have the most knowledge of the facts – identify the risks Do terms match business department’s needs? Do terms match business department’s needs? Time for payment Time for payment Invoice requirements Invoice requirements Are the terms fair – bilateral Are the terms fair – bilateral Force Majeure (don’t forget pandemic) Force Majeure (don’t forget pandemic)

Other Terms Insurance Default provisions – time to cure Address tax issues Confidentiality or non-disclosure Compliant with Public Records Act? Merger clause – complete agreement of the parties

More Terms Contract bestows rights on third-party Contract bestows rights on third-party Use of university’s name, logos or trademarks Use of university’s name, logos or trademarks Warranty disclaimers Warranty disclaimers Intellectual property rights Intellectual property rights Policy Statement #7 Policy Statement #7 Tax-Exempt Bond Issues Tax-Exempt Bond Issues Publication Rights Publication Rights BOG Policy BOG Policy Export Regulations Export Regulations

Independent Contractor or Employee? Independent contractor rules for consulting or personal services Independent contractor rules for consulting or personal services IRS Safe Harbor – 3 Requirements IRS Safe Harbor – 3 Requirements Has never treated IC as an employee (1099) Has never treated IC as an employee (1099) Has consistently treated those in similar positions as ICs. Has consistently treated those in similar positions as ICs. Has a reasonable basis for IC status: Has a reasonable basis for IC status: Court precedent, IRS rulings, etc.; or Court precedent, IRS rulings, etc.; or Reliance upon prior IRS audit for similar situation; or Reliance upon prior IRS audit for similar situation; or It is a recognized, long-standing practice for a large segment of the industry to treat certain types of workers as ICs. It is a recognized, long-standing practice for a large segment of the industry to treat certain types of workers as ICs.

Questions? I’m with the government – I’m here to help (ext )