This Checklist outlines key provisions and issues for consideration when drafting and negotiating a price clause in a business to business contract. For a simple example of a Precedent price clause, see Precedent: Template agreement—mutual, clause 6. For examples of more complex Precedent price clauses together with detailed drafting notes, see Precedent: International supply of goods agreement—business-to-business, clause 13 and Services agreement (ongoing supply)—balanced, clause 9. For a price variation clause, see Precedent: Price variation clauses. For a payment by letter of credit clause, see Precedent: Payment by letter of credit clause. For information on price clauses, see Practice Note: Price, payment terms and interest. Payment and price provisions in a contract are often interlinked. When using this checklist, also consider using: Drafting and negotiating a payment clause—checklist. See also Practice Note: Price and payment in commercial contracts—FAQs. Legal Issues General comments What to watch out for Basis of calculation: time and materials or fixed price Where fixed prices are used, these are commonly expressed by reference to a schedule (see for example Precedent:

This Checklist outlines key provisions and issues for consideration when drafting and negotiating retention of title clauses. A retention of title clause may also be referred to as an ROT clause. For a Precedent retention of title clause together with detailed drafting notes, see Precedent: Retention of title (standard, or simple) clause. For information on retention of title generally, see Practice Note: Retention of title and, in particular: • What is a retention of title (ROT) clause? • What does a retention of title clause do? • Key elements of retention of title clauses, and • Extended retention of title provisions Legal Issues General comments What to watch out for When does title pass? Retention of title clauses delay the passing of title to a purchaser of goods until the supplier has received payment for them. If the customer becomes insolvent (or suffers certain other specified events), the supplier is able to retake possession from the liquidator or administrator. See Practice Note: Retention of title.The two most common retention of title clauses

The growth of the telecommunications industry over the last decade has been exponential as a result of the need to meet the ever increasing demand for an effective communications network. Telecommunications operators, such as BT, Vodafone and Sky, cannot provide this network without being able to place their apparatus on private land. They require the ability to upgrade apparatus to keep pace with constant technological advances and share their apparatus to keep up with demand and provide choice to the public. However, while it is important to enable operators to function efficiently, site providers will be keen to ensure that their interests are adequately protected. This Practice Note covers points that can be incorporated into a telecommunications wayleave agreement to help protect the site provider’s position. Wayleave and the Electronic Communications Code A telecommunications wayleave agreement A wayleave is a consent or a licence by which one party (someone with an interest in the subject land) gives permission for another party to exercise a right over their land. A wayleave is not the same as an easement

This Checklist outlines key provisions and issues for consideration when drafting and negotiating time of the essence clauses. For a Precedent time of the essence clause together with detailed drafting notes, see Precedent: Time of the essence clause. For information on time of the essence, exceptions to the general rule and practical issues to be considered by customers and suppliers, see Practice Note: Time of the essence. Legal Issues General comments What to watch out for Nature of the term: condition, innominate term or warranty Time will be of the essence where the parties expressly stipulate that time will be of the essence. If time is of the essence, a delay may give rise to the right to terminate the contract and a right to recover damages.In the absence of express wording, for time to be of the essence it must be a condition of the contract. If the provision dealing with time is construed as an innominate term or a warranty, it will give rise only to an entitlement to damages, unless the

This Checklist sets out the key issues and provisions to consider when drafting and negotiating the assignment of rights and/or benefits under an existing contract to a third party. For precedent assignments, see Precedents: • Deed of assignment • Assignment agreement • Short form letter of assignment For ancillary documents, see Precedents: • Notice of assignment of contract—from assignor • Notice of assignment of contract—from assignee • Request for consent to assignment For information on assignment generally, see: • Practice Note: How to assign rights under a contract • Practice Note: What constitutes a valid assignment of a contract? • Practice Note: Assigning contracts—common scenarios and considerations • Third parties, subcontracting and transfers—overview Issue Consideration Is an assignment appropriate? An assignment involves the transfer of rights under an existing contract.The original contract is retained and no release of liability is provided for any party since the original contracting parties remain the same.Only the benefits under a contract can be transferred by way of assignment (such as the right to receive payment

This Checklist sets out the key issues to be considered when drafting and negotiating an ‘endeavours’ obligation and considers various ways in which an endeavours clause can be restricted in scope. For guidance on ‘endeavours’ obligations, see Practice Note: Reasonable and best endeavours. This Checklist does not address enforceability of ‘endeavours’ obligations and related drafting considerations. For guidance, see Practice Note: Reasonable and best endeavours—Drafting endeavours clauses. An endeavours obligation should only be used where a party’s lack of control or changing circumstances mean that an absolute obligation is not appropriate. If parties insist on including a best endeavours, reasonable endeavours or similar obligation in documentation, they should be aware of the difficulties of interpretation and the consequent uncertainty as to the extent of the liabilities involved. Given the particular uncertainty surrounding an ‘all reasonable endeavours’ obligation, the drafter should consider using either ‘best endeavours’ or ‘reasonable endeavours’. More certainty can be obtained by: • considering the extent of the obligation imposed • setting out objective criteria by which that obligation can be measured, and

This Checklist sets out key issues to consider, and provides practical guidance, when drafting and negotiating entire agreement clauses in a business-to-business (B2B) contract. It considers the implications of common law and statutory controls, including the Unfair Contract Terms Act 1977 (UCTA 1977) and the Misrepresentation Act 1967 (MA 1967). The purpose of an entire agreement clause is to give the parties certainty that the entirety of the agreement between them is set out in writing and to ensure that any pre-contractual representations, statements, arrangements or discussions will not form part of the agreement they are entering into. Statements are often made by one party to another as part of the pre-contract negotiations (for example as part of a sales process). Disputes can arise around whether, or which, statements are intended to form part of the contract or potentially give rise to other remedies. Depending on the facts, a pre-contractual statement might take legal effect (and give rise to remedies). For more information, see Practice Note: Pre-contractual representations and statements. An entire agreement clause usually consists of three component parts:

This Checklist outlines key provisions and issues for consideration when drafting and negotiating indemnity clauses in commercial contracts (ie business-to-business contracts). For a Precedent indemnity provision with drafting notes, see Precedent: Indemnity clause—commercial contracts. For further information on indemnities, see Practice Notes: • Indemnities in commercial contracts • Guarantees and indemnities—general contract For a ‘how to’ guide on reviewing an indemnity clause in commercial business-to-business (B2B) agreements which signposts relevant content, see Practice Note: How to review an indemnity clause. Legal issues General comments What to watch out for Is an indemnity appropriate? An indemnity is a contractual term under which a party promises to reimburse another in relation to specified loss or damage or, in some cases, to absolve them of liability.Unlike a guarantee, it creates a primary obligation which is not necessarily dependent on the default of a third party. Consider whether an indemnity is appropriate or whether a guarantee would be more suitable, for instance, where a parent company is guaranteeing the obligations of a subsidiary.If acting for the party giving

This Practice Note is part of the Share purchase transaction collection. In order to effect all aspects of the transaction, each share purchase transaction will require that certain ancillary documents be prepared (some of which will require more negotiation than others). These ancillary documents will either be drafted by the corporate lawyer drafting the share purchase agreement (SPA), or by a more junior colleague. Some will be entered into upon exchange and some upon completion (depending on whether or not these occur simultaneously). Ancillary documents include: • loan note instrument (where part of the consideration is to be satisfied with the issue of loan notes by the buyer) • board minutes (each of the buyer, seller and target company will need to hold board meetings to approve various matters at completion, with the buyer and seller also holding board meetings at exchange in order to approve entry into the SPA) • resolution of the members of the buyer (where the buyer's articles require a members' resolution to approve the terms

This Practice Note is part of the Lexis+® UK Corporate Private equity buyout transaction collection. In order to effect all aspects of the acquisition component of a private equity buyout transaction, the transaction will require that certain ancillary documents are prepared (some of which will require more negotiation than others). These ancillary documents will either be drafted by the corporate lawyer drafting the share purchase agreement (SPA), or by a more junior colleague. Some will be entered into on exchange and some on completion (depending on whether or not these occur simultaneously). Ancillary documents may include: • loan note instrument (where part of the consideration is to be satisfied with the issue of loan notes by the buyer) • board minutes (each of the buyer, seller and target company will need to hold board meetings to approve various matters at completion, with the buyer and seller also holding board meetings at exchange in order to approve entry into the SPA) • resolution of the members of

This Practice Note is part of the Lexis+® UK Corporate Private equity buyout transaction collection. In order to effect all aspects of the equity component of a private equity buyout transaction, an investment agreement (IA) will require that certain ancillary documents are prepared (some of which will require more negotiation than others). These ancillary documents will either be drafted by the corporate lawyer drafting the IA, or by a more junior colleague. Some will be entered into upon exchange and some upon completion (depending on whether or not these occur simultaneously). Depending on the structure of the buyout vehicle established by the private equity investor, ie the newly incorporated company or companies formed by the investor to acquire the target company, these documents will either be entered into by the newco acquisition vehicle, ie the entity acquiring the target company, or its ultimate parent company. References to ‘newco’ below therefore refer to the company in which the investor and the managers will make their equity

During the preliminary phase of a proposed transaction, the prospective parties will usually enter into a confidentiality agreement (often referred to as a non-disclosure agreement (NDA)), mainly to protect commercially sensitive information in the transaction process. The confidentiality agreement is often drafted and negotiated by the prospective parties’ in-house lawyers. The first draft is usually drafted by the borrower’s in-house lawyers and sent to the lender’s in-house lawyers for review. On some occasions, confidentiality agreements are prepared and reviewed by external lawyers. Parties The parties to the confidentiality agreement will be: • the prospective lender, and • the prospective borrower Drafting the confidentiality agreement Finding a suitable precedent Precedent Comments Confidentiality agreement—one-way—pro-recipient This confidentiality agreement may be used where a party is providing information to the recipient in connection with a proposed transaction and is written from the recipient’s perspective. It can be adapted for use in loan transactions where:• the prospective borrower would be the party providing the information (defined as the Discloser)•