Supply of Goods and Services

This Note discusses the Uniform Commercial Code (UCC) concepts of anticipatory repudiation and the right to demand adequate assurances of performance of a contract for the sale of goods.  This Note also discusses how to analyze and respond to pre-breach uncertainties related to contracts for the sale of goods.

This Note provides an overview of a payment method, known as a commercial letter of credit or documentary letter of credit, often used in international transactions for the sale of goods. It focuses on the basic letter of credit process involving an applicant, a beneficiary and an issuing bank. It also addresses more complex letter of credit arrangements involving an advising bank, a confirming bank and a negotiating bank.

A list and description of major filings and other documents in the litigation filed by a group of business organizations against the SEC challenging Section 1502 of the Dodd-Frank Act (the conflict minerals provision) and the SEC's conflict minerals rule.

This Practice Note discusses corporate social responsibility (CSR) trends affecting the supply chain. This Note defines CSR, describes why CSR should be important to companies, identifies relevant CSR legislation and outlines the different approaches that companies can take to address CSR in their supply chains.

This Practice Note discusses delivery provisions in a sale of goods transaction under Article 2 of the Uniform Commercial Code (UCC). It explains the concepts of tender of delivery by the seller and taking delivery by the buyer under the UCC's default provisions and how they can be varied by contract.  This Practice Note also reviews shipment contracts, destination contracts and shipping terms such as FOB (free on board) and EXW (ex works).

This Practice Note includes a diagram to show how common equipment leases, including Uniform Commercial Code (UCC) leases, UCC finance leases, true tax leases, operating leases, capital leases, TRAC leases, synthetic leases and leveraged leases are likely to be categorized as true or non-true leases under the UCC.

This Note discusses the various types of express warranties and implied warranties provided under Uniform Commercial Code (UCC) Article 2A by lessors to lessees in equipment leases, including the implied warranties of merchantability and fitness for a particular purpose, the implied warranty against infringement, and the implied warranty against interference. This Note also contains an overview comparing the implied warranties of a seller in a UCC Article 2 sale with the implied warranties of a lessor in a UCC Article 2A lease.

Note providing an overview of the antiboycott laws enforced by the US Commerce Department and Internal Revenue Service, including Section 8 of the Export Administration Act and the Ribicoff Amendment to the 1976 Tax Reform Act (codified in Section 999 of the Internal Revenue Code). Together, these laws encourage, and in some cases, require US individuals and companies to refuse to participate in or cooperate with foreign boycotts that are not sanctioned by the US government, for example, the Arab League boycott of Israel. These laws also contain significant reporting requirements, and impose significant criminal, civil and tax penalties for non-compliance.

A Practice Note discussing the key legal issues to consider when litigating product liability suits in the US. Specifically, this Note addresses the various substantive claims alleged by product liability plaintiffs, affirmative defenses asserted by defendants and the remedies available to successful plaintiffs.

This Note discusses requirements contracts under Article 2 of the Uniform Commercial Code (UCC), including mutuality of obligation, exclusivity, good faith and reasonableness requirements. In a requirements contract, the parties agree that the buyer is obligated to purchase its requirements of goods exclusively from the seller. This is different than an output contract, in which the parties agree that the buyer is obligated to purchase the seller's entire output of the goods.

This Practice Note discusses issues the supplier and sales representative must consider when structuring the sales compensation provisions of a sales representative agreement, including determining when the sales representative is deemed to earn its commissions, as well as the supplier's obligation to pay sales commissions after the expiration or termination of the agreement.

An overview of the Franchise Rule, the federal law governing franchises in the US, and the disclosure requirements that it imposes on franchisors in the US.  This Practice Note addresses the scope of the Franchise Rule and its interaction with state franchising laws, discusses the franchise disclosure document (FDD) that a franchisor must provide to prospective franchisees and explains each item of information that an FDD must include.

This Practice Note discusses the treatment of express warranties under Article 2 of the Uniform Commercial Code (UCC).  It explains how express warranties are created under Article 2. It also contains pro-buyer considerations about how to include express warranties in a written agreement and conversely, pro-seller considerations about how to limit and disclaim them.

A Practice Note containing an overview of the issues to consider when determining whether the UN Convention on Contracts for the International Sale of Goods (CISG) applies and, if it does, whether and how to opt out of the CISG. The Note also includes a summary comparison of the CISG and the Uniform Commercial Code (UCC).

Germany-specific information concerning the key legal and commercial issues to be considered when drafting a supply contract.

A discussion of risk factor and other disclosure included in 2012 SEC filings describing the specialized disclosure and diligence requirements imposed on some SEC reporting companies by Section 1502 of the Dodd-Frank Act, the conflict minerals provision. This resource includes links to filings that include conflict minerals disclosure and lists the industry and SIC code of each company that included this disclosure.

Italy-specific information concerning the key legal and commercial issues to be considered when drafting a supply contract.

This Standard Document is a form of absolute bill of sale that parties to a sale of goods agreement use to transfer title or evidence title transfer concerning the purchase of tangible goods. It includes representations and warranties and discusses indemnification provisions. Parties can use this Standard Document as a stand-alone agreement or as a document or agreement that is made under or in reference to a sale of goods agreement. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

A distribution agreement between a product seller (often, a manufacturer) and its distributor, drafted in the seller's favor.  This resource includes key obligations of the seller and distributor, the seller's intellectual property rights and commonly used warranty and indemnification provisions. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

Terms and conditions for the sale of goods, drafted in favor of the buyer. This Standard Document has integrated drafting notes with important explanations and drafting tips.

An independent contractor agreement between an independent contractor (a self-employed individual) and a client company for consulting or other services. This Standard Document is drafted in favor of the client company. This Standard Document has integrated notes with important explanations and drafting tips.

This Standard Document is a letter from a buyer of goods demanding adequate assurances of performance from a seller under Section 2-609 of the Uniform Commercial Code. The buyer can send this letter if it is insecure about the seller's ability or willingness to perform under a contract for the sale of goods. This Standard Document has integrated notes with important explanations and drafting tips.

This Standard Document is a letter from a seller of goods demanding adequate assurances of performance from a buyer under Section 2-609 of the Uniform Commercial Code. The seller can send this letter if it is reasonably insecure about the buyer's ability or willingness to make payment or perform under a contract for the sale of goods. This Standard Document has integrated notes with important explanations and drafting tips.

A manufacturing supply agreement between a buyer and a seller, drafted as an exclusive requirements contract, in favor of the seller. This resource includes key obligations of the buyer and seller, each party's intellectual and personal property rights and commonly used warranty and indemnification provisions. 

A product resale agreement between a supplier and the reseller, drafted in favor of the supplier.  This resource includes key obligations of the supplier and reseller, the supplier's intellectual property rights and commonly used warranty and indemnification provisions.  This Standard Document is a form of product reseller agreement that has been published as a preview of a future PLC Commercial Standard Document and does not contain typical, comprehensive PLC drafting notes.

A long-form agreement for the sale or supply of goods under Article 2 of the Uniform Commercial Code, drafted in favor of the seller or supplier. This resource includes key obligations of the seller and buyer, the seller's intellectual property rights and commonly used warranty and indemnification provisions. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.  

This is a sample change order form that parties to a services agreement use to mutually change the service provider's obligations under the agreement. This Standard Document has integrated notes with important explanations and drafting tips.

An agreement requiring the seller of a division or business line to provide transition services to the buyer following the closing. This Standard Document is drafted in favor of the buyer, but aims to be reasonable and includes provisions that are common to negotiated transition services agreements. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

Agreement for the provision of website design and development and related services (including optional provisions for where the supplier of such services also provides hosting services), drafted from the perspective of the supplier of such services.

This Standard Clause provides that a lessee is required to make rental payments under all circumstances, including if the lessor breaches the equipment lease or the equipment is damaged or unfit. This Standard Clause has integrated notes with important explanations and drafting tips.

This Standard Clause contains a Uniform Commercial Code (UCC) Article 2A finance lessor's product warranty disclaimers. This Standard Clause has integrated notes with important explanations and drafting tips.

These Standard Clauses provide general corporate social responsibility (CSR) representations and warranties for use in a commercial sale of goods or services transaction. Under these Standard Clauses, the seller represents and warrants to the buyer that it has implemented and conducts its business in accordance with CSR values and policies. In addition, the seller represents and warrants that it is in compliance with and has required its subcontractors and suppliers to comply with CSR laws, rules and regulations. These Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.

A Standard Clause that sets out the basic terms and conditions by which the contract parties agree to hold a portion of the contract consideration such as the purchase price with a third-party escrow agent to satisfy the seller's indemnification, warranty or other contract obligations. This Standard Clause has integrated drafting notes with important explanations and drafting and negotiating tips.

Standard Clauses related to compliance with economic or trade sanctions to be included by the seller of goods, services or technology in a sales contract.  Economic and trade sanctions are administered by the US Treasury Office of Foreign Assets Control (OFAC), and broadly prohibit most transactions between US persons and entities or persons located in an embargoed country.  These include comprehensive sanctions against countries like Cuba, Iran and Sudan, and limited embargoes against countries like North Korea, Syria and Burma. The US also imposes economic sanctions against certain Specially Designated Nationals (SDN). SDN are entities or individuals identified by OFAC based on their participation in targeted activities such as international drug trafficking and terrorism. These Standard Clauses have integrated notes with important explanations and drafting tips.

A Standard Clause that can be used in a sale of goods agreement to require either party to obtain insurance, including general liability, workers' compensation and automobile liability insurance. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

Standard Clause included in a sale or supply of goods agreement under which the buyer grants to the seller a purchase-money security interest (PMSI) in the goods to secure the buyer's obligation to pay the purchase price of the goods. This Standard Clause has integrated notes with important explanations and drafting tips.

These Standard Clauses provide for the pricing of goods in a commercial transaction for the sale of goods, drafted in favor of the seller. This resource also includes standard language addressing the inclusion in price of other costs such as transportation, insurance and taxes. These Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.

These Standard Clauses provide for pricing of services (commonly referred to as fees) in an agreement for the provision of services, drafted from the perpective of the customer. These Standard Clauses also include standard language addressing expenses, rate increases and taxes and have integrated notes with important explanations and drafting and negotiating tips.

A Standard Clause to be used in a sales representative agreement for the sale of goods under which the supplier, distributor, reseller or other seller of goods allows an independent contractor sales representative to collect sales proceeds directly from the customer, deduct the sales representative's commission and forward the balance of the proceeds to the supplier.  This Standard Clause has integrated drafting notes with important explanations and drafting and negotiating tips.

A Standard Clause to be used in a sales representative agreement for the sale of goods under which the supplier, distributor, reseller or other seller of goods agrees to pay an independent contractor sales representative a variable commission rate based on the sales representative's achievement of specified sales targets.  This Standard Clause has integrated drafting notes with important explanations and drafting and negotiating tips.

This Standard Clause specifies the procedures parties to a services agreement use to request and effectuate change orders. This Standard Clause includes a change order dispute resolution procedure and has integrated notes with important explanations and drafting and negotiating tips.

This checklist compares the characteristics of certain third-party provided credit support options that parties in sale of goods transactions commonly use to support a party's contractual obligations, including guaranties, commercial letters of credit, standby letters of credit and sureties (including performance bonds).

A Checklist of the requirements imposed by the final conflict mineral rule under Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The Checklist includes questions that guide a company in determining what conflict minerals disclosure and diligence obligations it has. 

A Checklist comparing the positions of a franchisor and franchisee on key issues that arise when drafting and negotiating a franchise agreement in the US.

A Checklist of the main questions to answer and issues to consider when drafting and negotiating a product reseller agreement.

This flowchart shows how the parties to a master equipment lease might synchronize the lease terms of individual items of equipment that are delivered by the lessor or accepted by the lessee on different days.

A Checklist of the main issues to consider when drafting and negotiating the lessee's end of lease obligations and options in an equipment lease. These include the lessee's option to renew the lease or to purchase the equipment.

A Checklist of the main structural and lease classification issues to consider when drafting and negotiating an equipment lease, including whether to structure the transaction as a sale of goods under Uniform Commercial Code (UCC) Article 2 or a lease of goods under UCC Article 2A, and issues relating to the treatment of the lease under the UCC, federal tax law and the accounting rules.

This Checklist presents issues to consider when launching an e-commerce website that sells retail merchandise.

A Checklist identifying key practical and contractual considerations a company should consider for a toll manufacturing agreement to protect its trade secret and other intellectual property (IP), particularly in Brazil, Russia, India and China (BRIC) countries.

A review of a sample of publicly-available conflict minerals policies available on company websites as of February 15, 2013.

On May 16, 2012, Practical Law Company and Vedder Price P.C. presented Structuring Equipment Leases: Tips for Achieving Your Economic and Other Business Goals, a one-hour webinar on certain of the fundamental commercial law, bankruptcy, tax, accounting and other implications when structuring and documenting capital equipment finance transactions. Click here to download the webinar audio.   Click here to download the webinar slides.

An Article discussing some of the major challenges that "private Surgeon General" suits pose to product manufacturers, and offering practical guidance on how to effectively defend these suits.

As part of President Obama's Export Control Reform initiative, the US Department of State has published the first in a series of final rules amending the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR). Among other things, these amendments transfer control over various aerospace items, parts and components from the juridisction of the ITAR to the EAR.

The US Census Bureau has published a final rule in the Federal Register amending its Foreign Trade Regulations to reflect new export reporting requirements, modify the postdeparture filing program and make remedial changes to the regulations to improve clarity and correct errors.

A California state appellate court recently held a franchisor vicariously liable for misleading or deceptive statements made by its franchisees in print and television advertisements.

Four national retailers recently agreed to pay penalties totalling $1.26 million to settle charges made by the FTC that they violated the Textiles Products Identification Act by labeling and advertising rayon products as being made of bamboo.

President Barack Obama recently signed the National Defense Authorization Act for Fiscal Year 2013 into law, restoring the President's authority to transfer commercial communications satellites from International Traffic in Arms Regulations (ITAR) jurisdiction to the less restrictive export controls under the Export Administration Regulations (EAR).

President Barack Obama recently signed into the law the National Defense Authorization Act for Fiscal Year 2013 (NDAA). The law contains new sanctions on Iran that will further restrict trade with the country.

The US Treasury Department Office of Foreign Assets Control recently issued amendments to the Iranian Transactions Regulations, renaming them the Iranian Transactions and Sanctions Regulations and making significant changes to the regulations.

The FTC recently released FAQ 37, which further defines the the term "exclusive territory" for purposes of the FTC's Amended Franchise Rule.

Effective October 5, 2012, US Customs and Border Protection is allowing importers to enter the Importer Self-Assessment program without further review if they first complete a focused assessment audit. Companies with access to the program receive many benefits, but must also comply with other program requirements.

The SEC issued final rules implementing conflict mineral disclosure requirements under the Dodd-Frank Act.