Professional Documents
Culture Documents
Elements of A Commercial Agreement
Elements of A Commercial Agreement
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Date
This Agreement is made February 3, 2005.
This Agreement entered into this 3rd day of
February, 2005.
This Agreement dated this 3rd day of February,
2005 with effect as of the 15th day of January,
2005.
This Agreement dated this 3rd day of February,
2005 (the “Signing Date”) with effect as of the
15th day of January, 2005 (the “Effective Date”).
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Parties
This Agreement is made February 3, 2005 between…
This Agreement is made February 3, 2005 among…
BETWEEN:
IBM Jamaica Ltd..,
[Insert Full Postal Address]
(the “Licensor”)
OF THE FIRST PART
AND
HP Jamaica Ltd.,
[Insert Full Postal Address]
(the “Licensee”)
OF THE SECOND PART
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Some commentary on the previous slide…
It is best to define the parties by what they “are”…
It is best to call IBM the “Licensor” – because they will be
licensing something
It is best to HP the “Licensee” – because they will receive the
benefit of a license from the licensor
ALSO, it is useful to set up the agreement in terms of Licensor &
Licensee because it serves as a useful template or precedent for
other licensing negotiations.
“OF THE FIRST PART” and “OF THE SECOND PART” are
meaningless phrases in today’s society…
There is some suggestion that these phrases arose when scribes
would record agreements (“scriveners”)…
But for modern purposes I would suggest that they are useless…
Sometimes you will also “Party of the First Part” and “Party of
the Second Part” – again, useless gibberish. 13
Recitals
This is the part of the contract after the parties are named that
starts with “WHEREAS”
I personally don’t like the use of “WHEREAS” but it seems to
have been accepted by the courts as a legitimate way of
introducing the recitals of an agreement…
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Canada Trust Co. v. Ontario Human Rights
Commission, 74 O.R. (2d) 481 (C.A.)
An in case you were wondering…
The Court held that:
The trust violated public policy.
It was premised on notions of racism and religious superiority that
contravened contemporary public policy.
However, the trust should not fail.
The cy-pres doctrine should be applied and the trust should be brought into
accord with public policy so as to permit the general charitable intent to
advance education to be implemented.
The recitals should be struck out and all restrictions with respect to race,
colour, creed or religion, ethnic origin and sex should be struck out.
From a practical, drafting perspective, it is useful to include a phrase that the
“foregoing recitals are true and correct” or that “the parties [hereby]
acknowledge and declare that the foregoing recitals are true and correct in
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substance and in fact”
Consideration
NOW THEREFORE THIS AGREEMENT WITNESSES that in
consideration of the mutual covenants and agreements herein and
the sum of one dollar ($1.00) and other good and valuable
consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties agree as follows:
NOW THEREFORE in consideration of the premises and the
mutual covenants and agreements herein, the parties hereto hereby
covenant and agree as follows:
Agenda
Types of intellectual property
Basic elements of a license agreement
Discuss and review a sample license
agreement
Types of intellectual property
Before we discuss software licensing agreements or IP
licensing agreements, it is useful to give an overview of the
different types of IP rights.
Patents
Trade-marks
Copyright (and Moral Rights)
Industrial Designs
Integrated Circuit Topographies
Confidential Information
Plant Breeders’ Rights, and Personality Rights (maybe)
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Software License Agreements
Software is licensed not sold…
Understanding the basics of licensing agreements is essential to
technology contracting.
Software licensing agreements will also help you understand
other types of licensing agreements – like franchising, celebrity
endorsements, etc.
Basic elements of a license agreement
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Take 15 minutes and review the
sample license agreement, and then
we’ll discuss.
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Seminar Work
At the end of tonight’s class, read the “Subcontractor Agreement”
It is an actual agreement I drafted for a client (pro bono);
It was accepted verbatim by the Prime Contractor WITHOUT
modification
Then, in your groups, discuss which parts of the Subcontractor
Agreement are favourable to the Licensor.
Assume that you and your team are counsel for the Prime Contractor,
and edit the agreement as to make it as mutual/fair/reasonable as
possible.
Use the “tracked changed” feature in Word
Send the hard-copy to Odesha and the soft-copy to me
(info@crownes.ca) on/by 4.30 pm on Monday, March 27th.
For clarity, you do not NEED to add new clauses, just edit the
existing clauses to make them more mutual or less biased.
But, if you feel that additional clauses you may add them. 30