合同谈判技巧课件

Headline, 36pt Arial, blue, aligned left, and can expand to two lines,First level text, 30pt Arial, black,Second level text, 30pt Arial, black,Third level text, 28pt Arial, black,Fourth level text, 28pt Arial, black,Fifth level text, 28pt Arial, black,Contract Training,Privileged and Confidential,Headline, 36pt Arial, blue, aligned left, and can expand to two lines,First level text, 30pt Arial, black,Second level text, 30pt Arial, black,Third level text, 28pt Arial, black,Fourth level text, 28pt Arial, black,Fifth level text, 28pt Arial, black,单击此处编辑母版标题样式,单击此处编辑母版文本样式,第二级,第三级,第四级,第五级,*,Intro / Objectives,Contract and Negotiation,Intro / ObjectivesContract an,What is a Contract?,What is a Contract?,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,What is a Contract?A promise o,What influences the Contract?,What influences the Contract?,The Element of a Contract,Offer,Mutual Assent,Intention to create legal relations,Offer/acceptance,Genuine Consent,Consideration,Capacity to Contract,Proper Form,Subject matter must be legal,The Element of a ContractOffer,What is an Offer,Proposal made by one party ( offeror ) to another ( offeree ) manifesting a willingness to enter into a bargain,An offer must:,have clear intent,be definite,be communicated (oral, written or by conduct),What is an OfferProposal mad,Mutual Assent,In commercial agreements, presumption is that contracting parties intend to be legally bound,Both parties must willingly agree to the terms of the contract,One party cannot be coerced or put under duress or threats,Contract cannot be obtained by fraud or mistake,Mutual AssentIn commercial agr,What is an Acceptance?,Acceptance is where the offeree indicates a consent to be bound by the terms of the offer,An acceptance must,Be unconditional,Be unequivocal,Be legally communicated to the offeror,What is an Acceptance?Acceptan,Acceptance,No particular form required so long as intention is clear,Only the recipient of the offer can accept,Acceptance effective when it is sent,Must accept the entire offer as made-”acceptance” proposing different terms is a counteroffer,AcceptanceNo particular form r,Consideration,Exchange of promises or things of value,Gratuitous promises may not be enforceable,Promise may be to do something,or,to refrain from doing something,A proposal must be sufficiently definite to be enforceable,ConsiderationExchange of promi,Capacity,A party may lack the capacity to enter into a legally enforceable contract,Minors,Mental Incompetence,Impairment drugs,Corporations very few instances where a corporation my lack capacity,CapacityA party may lack the c,Form of contract,Oral 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 oral contract, court interpretation can be very risky,As a general rule, always document contracts in writing-,Form of contractOral contracts,Form of contract,Requirement 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 arbitration,Statutory requirements,Formality,Affixing of seal,Witnessing,deeds,Form of contractRequirement fo,Contract Formation Elements,Offer,+,Acceptance,+,Consideration,=,Legally Enforceable Contract,Contract Formation Elements,Practice Tips,Contracts do not have to be in writing or follow any special form to be enforceable but at GE must use GE Legal Template,Be careful what you write and say,Be careful of e-mail,Know what you are buying,Know facts about what you are buying,Sites, quantity, price, parties, delivery, how purchased,Make sure contract you write reflects these,Practice TipsContracts do not,Case Study,Purchase 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 declined to pay the extra quantity.,Case StudyPurchase order sent,Business Aspects of A Written Contract,Introduction,Materials/design/ scope of work,Period of Agreement,Quantities,Price,Price Changes,Terms of Payment,Freight,Retention of Title Clause,Price Protection,Special Taxes,Packaging,Business Aspects of A Written,Administrative Issues,Certificate of Analysis (COA)= address for receipt,Delivery Terms,Tax Exempt Information,Contract Administrator,Invoice Address,Right to Know Requirements,Administrative IssuesCertifica,Key commercial terms,LOC,Termination,Continuous Improvement,Key commercial termsLOC,Basic Elements of Effective Agreements,PERFORMANCE,NON-PERFORMANCE,HOLD HARMLESS,Basic Elements of Effective Ag,Terms and Conditions - Performance,Claims,Warranty,Materials,Property Rights - patents,Liability,Force Majeure,Terms and Conditions - Perform,Terms and Conditions Specific to Service Agreements,Insurance,Safety & Health,Substance Abuse,Independent Contractor,Indemnification,Terms and Conditions Specifi,Risk Allocation,Warranties,Indemnities,Limitation of Liability,Insurance,Alternate Dispute Resolution (ADR),Cannot change any of these without S&L Legal agreement,Risk AllocationWarranties,What is a Warranty?,A promise that something is true,Five type of contractual warranties,Warranty 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 (usable for a defined or understood purpose),What is a Warranty?A promise t,Express Warranty,Product brochure that describes the product and its performance,Sample of the product to evaluate and try,Verbal description of product,Express WarrantyProduct brochu,Warranty of Merchantability,Implied 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 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,Warranty of MerchantabilityImp,Warranty of Fitness for a Particular Purpose,Implied in contracts for sale of goods between merchants,If 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 each such purpose,Warranty of Fitness for a Part,Warranty,EXPRESSED,Written in the agreement ,Specification,Scope of work,Engineering,WarrantyEXPRESSED,Incidental Damages,Reasonable 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 Costs,Disposal Costs,Incidental DamagesReasonable e,Consequential Damages,Indirect damage such as lost profits or cost of shutting down the plant,COMMON FOR BOTH PARTIES TO WAIVE,Obtain by language in our warranty, liability, negligence, and indemnification provisions,Consequential DamagesIndirect,What Is An Indemnity - /hold Harmless,Always a “hot button”,Promise to reimburse a party for a future monetary loss under certain conditions,If 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 indemnify against fines and civil penalties, personal injury, and property damage caused by the suppliers negligence,GEs indemnity when buying is mutual,What Is An Indemnity - /hold H,What is Limitation of Liability?,Limitation on the damages you would otherwise pay for breach of an agreement,Law presumes that commercial supplier of products or services is prudent and has done whats needed to place goods and services in “commerce” safely,Statute and the common law place liability on the supplier through negligence, breach of contract and warranty, strict liability for causing damage (property or personal injury or death) to buyer and third parties,Unless supplier limits its liability,What is Limitation of Liabilit,Limitations of Liability,GE sales contracts contain explicit limitations of liability as to amount, type of damages and time to bring a claim,GE purchase contracts rarely provide supplier a limitation of liability,Limiting liability depends entirely upon the negotiating power and ability of the parties,Resist giving one when purchasing,If must give one, carve outs important negligence, 3,rd,party claims, confidentiality, privacy,Limitations of LiabilityGE sal,Insurance,Ensure money available in the event product causes harm,GE sets low limits generally $ 1MM,However, must address risk in transaction and set out coverage to meet need,Do not limit liability to amount of insurance,GE is self insured except for excess liability,This means GE (i.e., SUB) pays ,no central fund downtown,InsuranceEnsure money availabl,Type of Insurance Required,Workers compensation own employee hurt on job,Employers liability coverage if employer sued by own employee,Commercial general liability includes a wide range of damages from suppliers operations or products bodily injury and property damage ,most important coverage,Automobile goes with vehicle,Type of Insurance RequiredWork,Insurance Issues,Always ask what the contractors insurance limits are,Build those limits into the insurance clause,Insurance requirements apply to subcontractors,Agreement governs liability exists even if cant pay it with insurance do not give this up,Insurance IssuesAlways ask wha,Confidential information,Agreements 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 may need license prior to export,Receiving party cannot export to proscribed countries unless authorized by US government,Confidential informationAgreem,Confidential Information,Confidentiality agreements are not joint development agreements,If development will take place,must,contact business patent attorney,Sourcing does not draft joint development agreements,Intellectual property created for and paid by GE should be owned by GE,Need appropriate assignment,No supplier markings on GE documents,Confidential InformationConfid,Negotiation Skills,Negotiation Skills,Bargaining,Scenario: buy a brass dish in Xiang Yang Market. Open position from buyer is $15, While the seller counter offer $75.,Customer,How much do you want for this brass dish?,Oh come on, its dented. Ill give you $15,Well, 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 Keeper,This is a beautiful antique, isnt it I guess I could let it go for $75,Really! I might consider a serious offer, but $15 certainly isnt serious,You 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 that will be worth twice what you pay today,BargainingScenario: buy a bras,What Sets the Skilled Negotiator Apart?,Skilled negotiators follow certain rules that novices do not understand or that they do not implement.,What Sets the Skilled Negotiat,Fundamental Elements of the Negotiation Process,Negotiations commonly follow a four step path:,Preparation,Information exchange,Explicit bargaining,Commitment,Negotiation is, in short, a kind of universal dance with these stages or steps. And it works best when both parties are experienced dancers.,Fundamental Elements of the Ne,Planning,A flexible negotiation plan.,Skilled negotiators develop strategies for each phase of the negotiation,Process: opening, bargaining, and closing.,What do I want?,Where do I start?,When do I move?,How do I close?,PlanningA flexible negotiation,Pre-bargaining Phase,Preparation and information exchange,Information 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 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,Pre-bargaining PhasePreparatio,Pre-bargaining Phase,Preparation 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 negotiation has its costs. What is going to be most cost effective?,Plan: Whats your negotiation plan?,Pre-bargaining PhasePreparatio,Explicit Bargaining Phase,Logistics: 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 moves by the other side.,Explicit Bargaining PhaseLogis,Explicit Bargaining Phase,Tactics:,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 there an elegant solution?,Be on constant lookout for compromise and creative solutions.,Explicit Bargaining PhaseTacti,Bargaining Skill,Good man, Bad man,Start with high stand and expect to achieve middle grand,Use hard negotiation type,Use boss as excuse,Bargaining SkillGood man, Bad,Work-OutDevelop a Negotiation Plan,Scenario:,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 court for the $100,000 payment.,You need to develop a Negotiation Plan on the upcoming negotiation meeting for $100,000,Work-OutDevelop a Negotiation,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 going to do.”,“This is it. If you dont want to accept it at that price, forget it.”,Hard Negotiator“Take it or lea,Soft Negotiator,It seems already reach the bottom-line of the other party- intends to trust others,OK. I accept,Disclose the self bottom-line,If we dont agree here, we will lose this deal- insist on agreement,For long term interest, lets agree this time- make concessions to cultivate the relationship,Soft NegotiatorIt seems alrea,Break the Tie- Getting to YES,Dont bargain over positions,my position, your position,Every negotiator by fact has two kinds of interests,In the substance,In the relationship,Harm to the relationship and may not achieve any agreement,Be careful to start negotiation with blaming other,Break the Tie- Getting to YESD,Break the Tie- Getting to YES,Focus on Interests, not positions,How do you identify interests?,Ask Why and Why not to clarify the other partys interest,The most powerful interests are basic human needs,Security, recognition, economic well-being,Make your interests come alive,Put the problem before your answer,Fighting hard on the problem increases the pressure for an effective solution,Soft to the human being on the other side to improve the relationship and increase the likelihood of reaching agreement,Break the Tie- Getting to YESF,Break the Tie- Getting to YES,Invent Options for Mutual Gain,Problem of only seeing a fixed pie,The mentality of solving their problem is their problem,Solution:,Separate inventing from deciding,Build the Lines of Communication,“To ease the stress of negotiating and improve the chances for a successful result, establish rapport with your opponent, and build on that foundation. This is especially important in cases where the parties will have a long-term relationship after closure,Break the Tie- Getting to YESI,Break the Tie- Getting to YES,Listen,“It is hard to overstate the importance of listening skills in bargainingthe best negotiatorsask question, test for understanding,summarize discussions, and listen, listen, listenYou often get more by finding out what the other person wants then you do by clever arguments supporting what you need.”,G. Richard Shell- “bargaining for Advantage”,Break the Tie- Getting to YESL,In large groups identify and “isolate” the decision makers,“No matter how many people are involved in a negotiation, important decisions are typically made when no more than two people are in the room.”,Roger Fisher and William Ury- “Getting to Yes,Break the Tie- Getting to YES,In large groups identify and,Work-OutRole Play,Scenario:,Paul Shoolmaker rented an apartment in March from John Realty for $300 a month. In July, when he and his roommate, John, wanted to move out, Shoolmaker learned that the apartment was under rent control ( for at least one year). The maximum legal rent was $233 a month- $67 less than he had been paying. Disturbed that he had been overcharged, Shoolmaker call on Mrs. Jone to discuss the problem.,Work-OutRole PlayScenario:,谢谢！,供娄浪颓蓝辣袄驹靴锯澜互慌仲写绎衰斡染圾明将呆则孰盆瘸砒腥悉漠堑脊髓灰质炎,(,讲课,2019),脊髓灰质炎,(,讲课,2019),谢谢！供娄浪颓蓝辣袄驹靴锯澜互慌仲写绎衰斡染圾明将呆则孰盆瘸,58,