Manufacturing and Supply Agreements: Drafting High Risk Provisions and Settling "Battle of the Forms" Issues

I. Introduction: battle of the forms

A. When should a master agreement be used?

B. Best practices when a master agreement is not in place, including what provisions should always be in POs

C. How to deal with the introduction of "additional or different" terms after a master supply agreement has been executed

II. Drafting and negotiating high risk provisions in manufacturing and supply contracts

A. Forecasting and inventory liability, and how sellers can minimize risk

B. Pricing: adjustments, change orders, early pay discounts, and most favored nations clauses

C. Tooling

D. Intellectual property

E. Warranty obligations, disclaimers, and remedies

F. Limitations of liability

G. Indemnity

H. Force majeure, including epidemics

I. Boilerplate: amendment, assignment, integration, choice of law, venue, dispute resolution, construction, advice of counsel, and other clauses

III. Practitioner takeaways

The panel will review these and other key issues:

• Approaches to dealing with the "battle of the forms" outside and within the scope of the supply agreement
• Identifying the riskiest contract provisions in manufacturing and supply agreements
• Negotiating warranty, intellectual property, tooling, indemnity, limitations of liabilities, forecasts, price adjustments, and change order provisions
• How to deal with situations when your client has already begun performing with no contract or only a PO