ContractNegotiation合同谈判技巧PPT课件

1、I n t r o / O b j e c t i v e sContract and Negotiation第1页/共57页What is a Contract?第2页/共57页What is a Contract? A promise or set of promises which the law will enforce The performance of which the law recognizes as a duty The breach of which the law will remedy第3页/共57页What influences the Contract?第4页/

2、共57页The Element of a ContractOfferMutual Assent Intention to create legal relations Offer/acceptance Genuine ConsentConsiderationCapacity to ContractProper FormSubject matter must be legal第5页/共57页 What is an OfferProposal made by one party ( offeror ) to another ( offeree ) manifesting a willingness

3、 to enter into a bargainAn offer must: have clear intent be definite be communicated (oral, written or by conduct) 第6页/共57页Mutual AssentIn commercial agreements, presumption is that contracting parties intend to be legally boundBoth parties must willingly agree to the terms of the contractOne party

4、cannot be coerced or put under duress or threatsContract cannot be obtained by fraud or mistake第7页/共57页What is an Acceptance? Acceptance is where the offeree indicates a consent to be bound by the terms of the offer An acceptance must Be unconditional Be unequivocal Be legally communicated to the of

5、feror第8页/共57页AcceptanceNo particular form required so long as intention is clearOnly the recipient of the offer can acceptAcceptance effective when it is sentMust accept the entire offer as made-”acceptance” proposing different terms is a counteroffer第9页/共57页Consideration Exchange of promises or thi

6、ngs of value Gratuitous promises may not be enforceable Promise may be to do something or to refrain from doing something A proposal must be sufficiently definite to be enforceable第10页/共57页CapacityA party may lack the capacity to enter into a legally enforceable contract Minors Mental Incompetence I

7、mpairment drugsCorporations very few instances where a corporation my lack capacity第11页/共57页Form of contractOral contracts Not all contracts must be in writing to be enforceable Beware of making an oral contract (intentionally or unintentionally recognize the risks involved) Although courts may upho

8、ld an oral contract, court interpretation can be very risky As a general rule, always document contracts in writing-第12页/共57页Form of contractRequirement for writing Some contracts must be in writing to be enforceable Subject matter (e.g. interest in land)Surety (answering for the debt of others)Peri

9、od for performance (e.g. greater than 1 year)Submission to arbitrationStatutory requirementsFormalityAffixing of sealWitnessingdeeds第13页/共57页Contract Formation ElementsOffer+Acceptance+Consideration=Legally Enforceable Contract第14页/共57页Practice TipsContracts do not have to be in writing or follow an

10、y special form to be enforceable but at GE must use GE Legal Template Be careful what you write and sayBe careful of e-mailKnow what you are buyingKnow facts about what you are buying Sites, quantity, price, parties, delivery, how purchasedMake sure contract you write reflects these第15页/共57页Case Stu

11、dyPurchase order sent to one supplier requesting for performance, and not require supplier to confirm; but supplier delayed to perform, is there a contract between two?A delivery accepted by one factory, although the delivered quantity is exceeding the PO requirement; but in the payment stage, the f

12、actory declined to pay the extra quantity.第16页/共57页Business Aspects of A Written ContractIntroductionMaterials/design/ scope of workPeriod of AgreementQuantitiesPricePrice Changes Terms of Payment Freight Retention of Title Clause Price Protection Special Taxes Packaging第17页/共57页Administrative Issue

13、sCertificate of Analysis (COA)= address for receiptDelivery TermsTax Exempt InformationContract AdministratorInvoice AddressRight to Know Requirements第18页/共57页Key commercial termsLOCTerminationContinuous Improvement第19页/共57页Basic Elements of Effective AgreementsPERFORMANCENON-PERFORMANCEHOLD HARMLES

14、S第20页/共57页Terms and Conditions - PerformanceClaimsWarrantyMaterialsProperty Rights - patentsLiabilityForce Majeure第21页/共57页Terms and Conditions Specific to Service AgreementsInsuranceSafety & HealthSubstance AbuseIndependent ContractorIndemnification第22页/共57页Risk AllocationWarrantiesIndemnitiesL

15、imitation of LiabilityInsuranceAlternate Dispute Resolution (ADR)Cannot change any of these without S&L Legal agreement第23页/共57页What is a Warranty?A promise that something is trueFive type of contractual warranties Warranty of title (you own it and no one else does) Warranty against infringement

16、 (no third party can make any claims against it) Express warranty (by description or sample) Implied warranty of merchantability (fair, average goods) Implied warranty of fitness for particular purpose (usable for a defined or understood purpose)第24页/共57页Express WarrantyProduct brochure that describ

17、es the product and its performanceSample of the product to evaluate and tryVerbal description of product第25页/共57页Warranty of MerchantabilityImplied in contracts for sale of goods “Merchantable” means Passes without objection in the trade Of fair average quality within the description Fit for the ord

18、inary purposes for which the products are used Even kind, quality and quantity within each unit and among all units Adequately contained, packaged, and labeled as the contract specifies Conforms to the representations made on the container or label第26页/共57页Warranty of Fitness for a Particular Purpos

19、eImplied in contracts for sale of goods between merchantsIf supplier knows or “has reason to know” a particular purpose for which the product is required and that buyer is relying on suppliers skill or judgment to select a suitable product, there is an implied warranty that the product will be fit f

20、or each such purpose第27页/共57页WarrantyEXPRESSEDWritten in the agreement SpecificationScope of workEngineering第28页/共57页Incidental DamagesReasonable expenses incurred in the inspection, receipt, transportation, care and custody (could extend to disposal if not returned) for non-conforming goods, along

21、with expense or purchasing from a third party Freight Costs Disposal Costs第29页/共57页Consequential DamagesIndirect damage such as lost profits or cost of shutting down the plantCOMMON FOR BOTH PARTIES TO WAIVEObtain by language in our warranty, liability, negligence, and indemnification provisions第30页

22、/共57页What Is An Indemnity - /hold HarmlessAlways a “hot button”Promise to reimburse a party for a future monetary loss under certain conditionsIf supplier gives an indemnity, whenever buyer gets a claim covered by the indemnity, the supplier will take care of it (represent buyer in suit, hire and pa

23、y for lawyers and court costs, and pay and damages)GE requires suppliers to indemnify against fines and civil penalties, personal injury, and property damage caused by the suppliers negligenceGEs indemnity when buying is mutual第31页/共57页What is Limitation of Liability?Limitation on the damages you wo

24、uld otherwise pay for breach of an agreementLaw presumes that commercial supplier of products or services is prudent and has done whats needed to place goods and services in “commerce” safelyStatute and the common law place liability on the supplier through negligence, breach of contract and warrant

25、y, strict liability for causing damage (property or personal injury or death) to buyer and third parties Unless supplier limits its liability第32页/共57页Limitations of LiabilityGE sales contracts contain explicit limitations of liability as to amount, type of damages and time to bring a claimGE purchas

26、e contracts rarely provide supplier a limitation of liabilityLimiting liability depends entirely upon the negotiating power and ability of the partiesResist giving one when purchasing If must give one, carve outs important negligence, 3rd party claims, confidentiality, privacy第33页/共57页InsuranceEnsur

27、e money available in the event product causes harmGE sets low limits generally $ 1MMHowever, must address risk in transaction and set out coverage to meet needDo not limit liability to amount of insuranceGE is self insured except for excess liabilityThis means GE (i.e., SUB) pays no central fund dow

28、ntown第34页/共57页Type of Insurance RequiredWorkers compensation own employee hurt on jobEmployers liability coverage if employer sued by own employeeCommercial general liability includes a wide range of damages from suppliers operations or products bodily injury and property damage most important cover

29、ageAutomobile goes with vehicle第35页/共57页Insurance IssuesAlways ask what the contractors insurance limits areBuild those limits into the insurance clauseInsurance requirements apply to subcontractorsAgreement governs liability exists even if cant pay it with insurance do not give this up第36页/共57页Conf

30、idential informationAgreements require that suppliers Protect our information as supplier protects its own but no less than reasonable degree of care Only necessary personnel should have access No use of GE name or Oval US export laws/regulations govern export of technical data/products Disclosing p

31、arty may need license prior to export Receiving party cannot export to proscribed countries unless authorized by US government第37页/共57页Confidential InformationConfidentiality agreements are not joint development agreements If development will take place, must contact business patent attorney Sourcin

32、g does not draft joint development agreementsIntellectual property created for and paid by GE should be owned by GE Need appropriate assignment No supplier markings on GE documents第38页/共57页Negotiation Skills第39页/共57页BargainingScenario: buy a brass dish in Xiang Yang Market. Open position from buyer

33、is $15, While the seller counter offer $75.CustomerHow much do you want for this brass dish?Oh come on, its dented. Ill give you $15Well, I could go to $20, but I would never pay anything l like $75. Quote me a realistic price$25$37.5. Thats the highest I will go.Shop KeeperThis is a beautiful antiq

34、ue, isnt it I guess I could let it go for $75Really! I might consider a serious offer, but $15 certainly isnt seriousYou drive a hard bargain, young lady. $60 cash, right now.It cost me a great deal more than that. Make me a serious offer.Have you noticed the engraving on that dish? Next year pieces

35、 like that will be worth twice what you pay today第40页/共57页What Sets the Skilled Negotiator Apart?Skilled negotiators follow certain rules that novices do not understand or that they do not implement.第41页/共57页Fundamental Elements of the Negotiation ProcessNegotiations commonly follow a four step path

36、: Preparation Information exchange Explicit bargaining CommitmentNegotiation is, in short, a kind of universal dance with these stages or steps. And it works best when both parties are experienced dancers.第42页/共57页PlanningA flexible negotiation plan. Skilled negotiators develop strategies for each p

37、hase of the negotiation Process: opening, bargaining, and closing. What do I want? Where do I start?When do I move? How do I close?第43页/共57页Pre-bargaining PhasePreparation and information exchangeInformation and Analysis: What are the issues? Learn as much as you can about the issue. What informatio

38、n do you need from the other side?Leverage Evaluation: Evaluate your leverage and the other partys leverage to the outset. May be a number of things you can do to improve your leverage or diminish the leverage of the other side.Goals and Expectations: Goals are one thing; expectations are something

39、else第44页/共57页Pre-bargaining PhasePreparation and information exchange Type of Negotiation: What type of negotiation do you expect? Will this be highly competitive, cooperative, or something unusual? Will you be negotiating face to face, by fax, through a mediator, or in some other manner? Budget: Ev

40、ery negotiation has its costs. What is going to be most cost effective? Plan: Whats your negotiation plan?第45页/共57页Explicit Bargaining PhaseLogistics: when, where, and how will you negotiate?Opening Offers: What is the best offer you can justify? Should you make it, or wait to let another party go f

41、irst?Subsequent Offers: How should you adjust your negotiating plan when responding to unanticipated moves by the other side.第46页/共57页Explicit Bargaining PhaseTactics: What sort of tactics will you employ? What sort of tactics is the other side using on you?Concessions: What concession will you make

42、? How will you make them?Resolution: What is the best way to resolve the problem? Is there an elegant solution? Be on constant lookout for compromise and creative solutions.第47页/共57页Bargaining SkillGood man, Bad manStart with high stand and expect to achieve middle grandUse hard negotiation typeUse

43、boss as excuse第48页/共57页Work-OutDevelop a Negotiation PlanScenario: Sourcing was notified by the Engineering Team that one of the construction supplier already spent $100,000 on the revised scope of work without the proper execution authority granted. Now our company holds their payment due to their

44、incompliance, but the supplier threat to go to court for the $100,000 payment. You need to develop a Negotiation Plan on the upcoming negotiation meeting for $100,000第49页/共57页Hard Negotiator“Take it or leave it.”“This proposal is non negotiable.”“Dont ask me go back to my boss on this. This is all w

45、e are going to do.”“This is it. If you dont want to accept it at that price, forget it.”第50页/共57页Soft NegotiatorIt seems already reach the bottom-line of the other party- intends to trust othersOK. I acceptDisclose the self bottom-lineIf we dont agree here, we will lose this deal- insist on agreemen

46、tFor long term interest, lets agree this time- make concessions to cultivate the relationship第51页/共57页Break the Tie- Getting to YESDont bargain over positions my position, your position Every negotiator by fact has two kinds of interestsIn the substanceIn the relationship Harm to the relationship and may not achieve any agreementBe careful to start negotiation with blaming other第52页/共57页Break the Tie- Getting to YESFocus on Interests, not positions How do you identify interests? Ask Why and Why not to clarify the other party