ContractNegotiation合同談判技巧-PPT精選文檔

1、ContractNegotiation合同談判技巧-PPT精選文檔ContractNegotiation合同談判技巧-PPT精What is a Contract?What is a Contract?What is a Contract?A promise or set of promises which the law will enforceThe performance of which the law recognizes as a dutyThe breach of which the law will remedyWhat is a Contract?A promise oWha

2、t influences the Contract?What influences the Contract?The Element of a ContractOfferMutual AssentIntention to create legal relationsOffer/acceptanceGenuine ConsentConsiderationCapacity to ContractProper FormSubject matter must be legalThe Element of a ContractOffer What is an OfferProposal made by

3、one party ( offeror ) to another ( offeree ) manifesting a willingness to enter into a bargainAn offer must: have clear intent be definite be communicated (oral, written or by conduct) What is an OfferProposal madMutual AssentIn commercial agreements, presumption is that contracting parties intend t

4、o be legally boundBoth parties must willingly agree to the terms of the contractOne party cannot be coerced or put under duress or threatsContract cannot be obtained by fraud or mistakeMutual AssentIn commercial agrWhat is an Acceptance?Acceptance is where the offeree indicates a consent to be bound

5、 by the terms of the offerAn acceptance mustBe unconditionalBe unequivocalBe legally communicated to the offerorWhat is an Acceptance?AcceptanAcceptanceNo particular form required so long as intention is clearOnly the recipient of the offer can acceptAcceptance effective when it is sentMust accept t

6、he entire offer as made-”acceptance” proposing different terms is a counterofferAcceptanceNo particular form rConsiderationExchange of promises or things of valueGratuitous promises may not be enforceablePromise may be to do something or to refrain from doing somethingA proposal must be sufficiently

7、 definite to be enforceableConsiderationExchange of promiCapacityA party may lack the capacity to enter into a legally enforceable contractMinorsMental IncompetenceImpairment drugsCorporations very few instances where a corporation my lack capacityCapacityA party may lack the cForm of contractOral c

8、ontractsNot all contracts must be in writing to be enforceableBeware of making an oral contract (intentionally or unintentionally recognize the risks involved)Although courts may uphold an oral contract, court interpretation can be very riskyAs a general rule, always document contracts in writing-Fo

9、rm of contractOral contractsForm 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 performance (e.g. greater than 1 year)Submission to arbitrationStatutory requirementsForma

10、lityAffixing of sealWitnessingdeedsForm of contractRequirement foContract Formation ElementsOffer+Acceptance+Consideration=Legally Enforceable ContractContract Formation ElementsPractice TipsContracts do not have to be in writing or follow any special form to be enforceable but at GE must use GE Leg

11、al Template Be careful what you write and sayBe careful of e-mailKnow what you are buyingKnow facts about what you are buyingSites, quantity, price, parties, delivery, how purchasedMake sure contract you write reflects thesePractice TipsContracts do not Case StudyPurchase order sent to one supplier

12、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 declined to pay the extra quant

13、ity.Case StudyPurchase order sent Business Aspects of A Written ContractIntroductionMaterials/design/ scope of workPeriod of AgreementQuantitiesPricePrice ChangesTerms of PaymentFreightRetention of Title ClausePrice ProtectionSpecial TaxesPackagingBusiness Aspects of A Written Administrative IssuesC

14、ertificate of Analysis (COA)= address for receiptDelivery TermsTax Exempt InformationContract AdministratorInvoice AddressRight to Know RequirementsAdministrative IssuesCertificaKey commercial termsLOCTerminationContinuous ImprovementKey commercial termsLOCBasic Elements of Effective AgreementsPERFO

15、RMANCENON-PERFORMANCEHOLD HARMLESSBasic Elements of Effective AgTerms and Conditions - PerformanceClaimsWarrantyMaterialsProperty Rights - patentsLiabilityForce MajeureTerms and Conditions - PerformTerms and Conditions Specific to Service AgreementsInsuranceSafety & HealthSubstance AbuseIndependent

16、ContractorIndemnificationTerms and Conditions SpecifiRisk AllocationWarrantiesIndemnitiesLimitation of LiabilityInsuranceAlternate Dispute Resolution (ADR)Cannot change any of these without S&L Legal agreementRisk AllocationWarrantiesWhat is a Warranty?A promise that something is trueFive type of co

17、ntractual warrantiesWarranty of title (you own it and no one else does)Warranty against infringement (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 (

18、usable for a defined or understood purpose)What is a Warranty?A promise tExpress WarrantyProduct brochure that describes the product and its performanceSample of the product to evaluate and tryVerbal description of productExpress WarrantyProduct brochuWarranty of MerchantabilityImplied in contracts

19、for sale of goods“Merchantable” meansPasses without objection in the tradeOf fair average quality within the descriptionFit for the ordinary purposes for which the products are usedEven kind, quality and quantity within each unit and among all unitsAdequately contained, packaged, and labeled as the

20、contract specifiesConforms to the representations made on the container or labelWarranty of MerchantabilityImpWarranty of Fitness for a Particular PurposeImplied in contracts for sale of goods between merchantsIf supplier knows or “has reason to know” a particular purpose for which the product is re

21、quired 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 each such purposeWarranty of Fitness for a PartWarrantyEXPRESSEDWritten in the agreement SpecificationScope of workEngineeringWarrantyEXPRESSEDI

22、ncidental DamagesReasonable expenses incurred in the inspection, receipt, transportation, care and custody (could extend to disposal if not returned) for non-conforming goods, along with expense or purchasing from a third party Freight CostsDisposal CostsIncidental DamagesReasonable eConsequential D

23、amagesIndirect 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 provisionsConsequential DamagesIndirect What Is An Indemnity - /hold HarmlessAlways a “hot button”P(pán)romise to rei

24、mburse 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 lawyers and court costs, and pay and damages)GE requires suppliers to i

25、ndemnify against fines and civil penalties, personal injury, and property damage caused by the suppliers negligenceGEs indemnity when buying is mutualWhat Is An Indemnity - /hold HWhat is Limitation of Liability?Limitation on the damages you would otherwise pay for breach of an agreementLaw presumes

26、 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, strict liability for causing damage (property or pers

27、onal injury or death) to buyer and third parties Unless supplier limits its liabilityWhat is Limitation of LiabilitLimitations of LiabilityGE sales contracts contain explicit limitations of liability as to amount, type of damages and time to bring a claimGE purchase contracts rarely provide supplier

28、 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, privacyLimitations of LiabilityGE salInsuranceEnsure money availa

29、ble 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 downtownInsurance

30、Ensure money availablType 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 importan

31、t coverageAutomobile goes with vehicleType of Insurance RequiredWorkInsurance 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 n

32、ot give this upInsurance IssuesAlways ask whaConfidential informationAgreements require that suppliersProtect our information as supplier protects its own but no less than reasonable degree of careOnly necessary personnel should have accessNo use of GE name or OvalUS export laws/regulations govern e

33、xport of technical data/productsDisclosing party may need license prior to exportReceiving party cannot export to proscribed countries unless authorized by US governmentConfidential informationAgreemConfidential InformationConfidentiality agreements are not joint development agreementsIf development

34、 will take place, must contact business patent attorneySourcing does not draft joint development agreementsIntellectual property created for and paid by GE should be owned by GENeed appropriate assignmentNo supplier markings on GE documentsConfidential InformationConfidNegotiation SkillsNegotiation

35、SkillsBargainingScenario: buy a brass dish in Xiang Yang Market. Open position from buyer 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

36、 realistic price$25$37.5. Thats the highest I will go.Shop KeeperThis is a beautiful antique, 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 t

37、hat. Make me a serious offer.Have you noticed the engraving on that dish? Next year pieces like that will be worth twice what you pay todayBargainingScenario: buy a brasWhat Sets the Skilled Negotiator Apart?Skilled negotiators follow certain rules that novices do not understand or that they do not

38、implement.What Sets the Skilled NegotiatFundamental Elements of the Negotiation ProcessNegotiations commonly follow a four step path:PreparationInformation exchangeExplicit bargainingCommitmentNegotiation is, in short, a kind of universal dance with these stages or steps. And it works best when both

39、 parties are experienced dancers.Fundamental Elements of the NePlanningA flexible negotiation plan.Skilled negotiators develop strategies for each phase of the negotiationProcess: opening, bargaining, and closing.What do I want?Where do I start?When do I move?How do I close?PlanningA flexible negoti

40、ationPre-bargaining PhasePreparation and information exchangeInformation and Analysis: What are the issues? Learn as much as you can about the issue. What information do you need from the other side?Leverage Evaluation: Evaluate your leverage and the other partys leverage to the outset. May be a num

41、ber 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 elsePre-bargaining PhasePreparatioPre-bargaining PhasePreparation and information exchangeType of Negotiation:What type of negotiation

42、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 negotiation has its costs. What is going to be most cost effective?Plan: Whats your negotiation plan?Pre-bargaining

43、 PhasePreparatioExplicit 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?Subsequent Offers:How should you adjust your negotiating plan when responding to unanticipated

44、moves by the other side.Explicit Bargaining PhaseLogisExplicit 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 you make them?Resolution:What is the best way to resolve the problem?Is t

45、here an elegant solution?Be on constant lookout for compromise and creative solutions.Explicit Bargaining PhaseTactiBargaining SkillGood man, Bad manStart with high stand and expect to achieve middle grandUse hard negotiation typeUse boss as excuseBargaining SkillGood man, Bad Work-OutDevelop a Nego

46、tiation 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 incompliance, but the supplier threat to go to

47、 court for the $100,000 payment.You need to develop a Negotiation Plan on the upcoming negotiation meeting for $100,000Work-OutDevelop a NegotiationHard 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 going to do.”“This is

48、 it. If you dont want to accept it at that price, forget it.”Hard Negotiator“Take it or leaSoft 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 l

49、ong term interest, lets agree this time- make concessions to cultivate the relationshipSoft NegotiatorIt seems alreaBreak 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 rela

50、tionship and may not achieve any agreementBe careful to start negotiation with blaming otherBreak the Tie- Getting to YESDBreak the Tie- Getting to YESFocus on Interests, not positionsHow do you identify interests?Ask Why and Why not to clarify the other partys interestThe most powerful interests ar

51、e basic human needsSecurity, recognition, economic well-being,Make your interests come alivePut the problem before your answerFighting hard on the problem increases the pressure for an effective solutionSoft to the human being on the other side to improve the relationship and increase the likelihood of reaching agreementB