ContractNegotiation合同談判技巧PPT課件

1、I n t r o / O b j e c t i v e sContract and Negotiation第1頁/共57頁What is a Contract?第2頁/共57頁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頁/共57頁What influences the Contract?第4頁/

2、共57頁The Element of a ContractOfferMutual Assent Intention to create legal relations Offer/acceptance Genuine ConsentConsiderationCapacity to ContractProper FormSubject matter must be legal第5頁/共57頁 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頁/共57頁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頁/共57頁What is an Acceptance?Acceptance is where the offeree indicates a consent to be bound by the terms of the offerAn acceptance must Be unconditional Be unequivocal Be legally communicated to the offe

5、ror第8頁/共57頁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頁/共57頁ConsiderationExchange of promises or things

6、 of valueGratuitous promises may not be enforceablePromise may be to do something or to refrain from doing somethingA proposal must be sufficiently definite to be enforceable第10頁/共57頁CapacityA party may lack the capacity to enter into a legally enforceable contract Minors Mental Incompetence Impairm

7、ent drugsCorporations very few instances where a corporation my lack capacity第11頁/共57頁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 uphold an

8、oral contract, court interpretation can be very risky As a general rule, always document contracts in writing-第12頁/共57頁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)Period for

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

10、ial 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頁/共57頁Case StudyPurc

11、hase 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 factory

12、 declined to pay the extra quantity.第16頁/共57頁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頁/共57頁Administrative IssuesCerti

13、ficate of Analysis (COA)= address for receiptDelivery TermsTax Exempt InformationContract AdministratorInvoice AddressRight to Know Requirements第18頁/共57頁Key commercial termsLOCTerminationContinuous Improvement第19頁/共57頁Basic Elements of Effective AgreementsPERFORMANCENON-PERFORMANCEHOLD HARMLESS第20頁/

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

15、ion of LiabilityInsuranceAlternate Dispute Resolution (ADR)Cannot change any of these without S&L Legal agreement第23頁/共57頁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 (no t

16、hird 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頁/共57頁Express WarrantyProduct brochure that describes the

17、 product and its performanceSample of the product to evaluate and tryVerbal description of product第25頁/共57頁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 ordinary

18、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頁/共57頁Warranty of Fitness for a Particular PurposeImpli

19、ed 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 for eac

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

21、xpense or purchasing from a third party Freight CostsDisposal Costs第29頁/共57頁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頁/共57頁Wh

22、at 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 pay for l

23、awyers 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頁/共57頁What is Limitation of Liability?Limitation on the damages you would oth

24、erwise 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 warranty, stri

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

26、acts 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頁/共57頁InsuranceEnsure money

27、 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 downtown第3

28、4頁/共57頁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 coverageAuto

29、mobile goes with vehicle第35頁/共57頁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頁/共57頁Confidentia

30、l 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 party ma

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

32、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頁/共57頁Negotiation Skills第39頁/共57頁BargainingScenario: buy a brass dish in Xiang Yang Market. Open position from buyer is $15,

33、 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 antique, isn

34、t 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 like t

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

36、ration 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頁/共57頁PlanningA flexible negotiation plan. Skilled negotiators develop strategies for each phase of

37、 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頁/共57頁Pre-bargaining PhasePreparation and information exchangeInformation and Analysis: What are the issues? Learn as much as you can about the issue. What information do you n

38、eed 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 else第44頁/共

39、57頁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: Every negoti

40、ation has its costs. What is going to be most cost effective? Plan: Whats your negotiation plan?第45頁/共57頁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 first?Subse

41、quent Offers: How should you adjust your negotiating plan when responding to unanticipated moves by the other side.第46頁/共57頁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? How will

42、 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頁/共57頁Bargaining SkillGood man, Bad manStart with high stand and expect to achieve middle grandUse hard negotiation typeUse boss as ex

43、cuse第48頁/共57頁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 incomplian

44、ce, 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頁/共57頁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 we are goin

45、g to do.”“This is it. If you dont want to accept it at that price, forget it.”第50頁/共57頁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 agreementFor long

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