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

In the news

Rush Limbaugh & Sandra Fluke What contract provisions would you draft? Photo from Washington Times Web site

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

Syntactic sins

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 ….

Experiment

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

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: ② Receiving party score: ⑤ Disclosing party score: ③ Receiving party score: ⑤

Z&B Exercise E

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.

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

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

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

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

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

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 ….

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.

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

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

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 ….