- Agent: In ordinary business usage, "agent" describes any situation in which one person is the public face of another. For instance your expert in Beijing might be called your "purchasing agent" there, not to say anything about your legal relationship but just to say that they act for you. But in European law "agent" has a precise meaning, creating real risk. Your agent's acts are,in law, your acts, with the advantage that they must (theoretically) do what you say but the disadvantage that your are fully liable to third parties for those acts. A word to use carefully.
- Consequential loss: This is a term covering types of contractual loss. By using this term, parties try to exclude liability for certain losses under contracts( such as loss of profit). But the courts attach different meaning to the term than business do, which can result in some losses being claimable under the contract that the party intended to exclude. It is important that the parties are specific when using the term "consequential loss" and expressly state which losses come under the exclusion or limitation.
- Change of control: A "change of control" provision offers protection if ownership of the other party to a contract is transferred. It will often give a party the right to terminate the agreement or renegotiate terms, therefore what constitute "control" to give effect to this right needs to be carefully defined. This type of provision will be important to buyers if ownership of a supplier is transferred, particularly if the new controlling party is a direct competitor, changes the way business is conducted, or if personally clashes prevent parties working effectively together. Buyers should note the provisions could also apply in the event that their own organization changes hands.
- Consideration: This is the value paid for a promise and is central concept in contract law. For example, if you sign a contract with someone to buy his house, which he promise to give to you.Your consideration is the money that you pay for the house. A contract saying that he would give you his house for nothing would not be valid by itself because you aren't giving him any consideration. In basic terms, the offeree must give something back to the offeror in return to his promise.
- Contract award: Be careful when you hear about public contracts being awarded. In public procurement, "contract award" is the point when the public law decision is made to proceed with a particular contractor's bid. It will trigger the duty to tell the unsuccessful bidders about the decision giving them the opportunity to challenge the decision before the contract signed. Contracts award is not , therefore, the time when the contract is entered. That follows the compulsory standstill period triggered by the contract award decision.
- Criteria: Buyers should be aware that in most public procurement for non-commodity items, there will be a two-phase procedure with two sets of criteria. Selection criteria are used to evaluate candidates in the first round response. Those selected are invited to tender in a second round. Award criteria are then used to score the tenders and decide the winner. To stay on the right side of the law the two sets of criteria must be confused. "Experience" criteria can also be a real problem. In general, "experience" should be a criterion in the "selection"phase. If you include it as an award criterion,you might be breaking public procurement law.
- Force majeure: A " force majeure" (superior force) provision usually provides that if a party does not perform an obligation under the contract (for example, delivery of goods) for reasons outside that party's control (such as war or natural disaster), the other party will not make that party liable for non-performance. It is essential therefore that the meaning is fully defined in the contract and that the defaulting party is required to mitigate any effects. More often than not a force majeure provision will allow the parties to terminate agreement if the event continues for a psecifc
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