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GSB010 Contract Law for Managers
2,000 – Substantive Content only – see notes
Assignment feedback will be provided in the table below, embedded in the assignment text and inserted as comments. Please note that feedback will only be stated on the first instance and any continued and repeated instance of the issue will not be marked.
Marking Guide:– Word count.– Presentation and report format to prescribed AIM standard.– Demonstration of wide reading and inclusion of applicable boilerplate clauses.– Academic writing appropriate to postgraduate level of study. Clearly articulated. Within required word count. Well structured, logical flow to argument.
Guideline: Follow the word count restriction that would apply only to the Recitals, Buyer Obligations, Supplier Obligations and Pricing clauses (i.e., all the substantive content). You DO NOT need to reference any clauses you utilise from other contracts, but they must make sense for this application. Ensure the text is written in 3rd person; Avoid long sentences; and Make sure the terms and conditions are in a logical order so it is flowing to make it a pleasant and interesting read.
Marketing Guide:– Demonstration of knowledge of concepts.– Concepts support the assignment brief’s legal intent.
Guideline: Make sure you respond to all assignment brief terms and condition clauses, Provide a wide coverage of the related boilerplate clauses; and Make sure the points presented are in a logical order.
Practical Application (20%)
Marketing Guide: – Make sure all obligations that would need to be stated and expressed.– Demonstrates all clauses are in the context for this type of contract and the intent of the legal protections.
Guideline: Modify all terms and conditions specific to the intent and purpose of the contract.
Analytical Thinking (20%
Marketing Guide:– Demonstration of analytical thinking in relation to the needed boilerplate clauses.– Demonstration of analytical thinking in attempting to renegotiate any parts of the brief that would be likely unfair, voidable or unenforceable.
Guideline: Provide footnotes to any renegotiated position due to the brief suggesting any position that would likely be deemed unfair, voidable or unenforceable. Think through missing information in the brief.
Recommendations / Conclusions (10%)
Marketing Guide:– Use footnotes to reflect on the negotiated position or any fictitious renegotiated position if you feel the assignment brief is incorrect or needed more clarity. This includes stating assumptions. .
Guideline: Use footnotes to explain your clauses, Use footnote to state your assumptions. Use footnotes to explain if you would have renegotiated a position to make the contract more fair or appropriate for the purpose.
INSTRUCTION: When doing the assignment, if you believe something was ‘unreasonable’ you can redefine a new negotiated position, however you need to add a footnote to explain what was fictitiously renegotiated due to being deemed unfair, unenforceable or voidable.
The intent is to make sure you cover all items in the assignment brief and look at applicable boilerplate clauses you find in your research.
Some boilerplate clauses have been provided, noting that the Dispute Resolution was a long version. Not all provided may apply, and given students are not lawyers, you have the right to cut and paste clauses in, or to use clauses from templates in your workplace without the need to show references.
The Recitals, Buyer Obligations, Supplier Obligations and Pricing clauses is where the word count applied (i.e., the substantive content).
You may use this template or any other template. Please ensure this cover page is used.
This Sale of Goods Contract Agreement (“Agreement”) is dated the <Date> (the “Effective Date”).
<Party A Name>, a trade name of the <Party A Trading Name> (Australian Business Number xx xxx xxx xxx) of <Address> in the State of Western Australia, Australia (“Buyer”);
<Party B Name>, a trade name of the <Party B Trading Name> (Australian Business Number xx xxx xxx xxx) of <Address> in the State of Western Australia, Australia (“Supplier”);
(each a “Party”)
(250) The Buyer carries on the business of, among other things, providing ….
(250) The Supplier carries on the business of, among other things, providing ….
(250) <Explain intent>The intention is to be legally bound
The following definitions apply to this Agreement or provide a context to the Institute’s wider use of terminology:
“<State Word>” means…
“Intellectual Property” means any intellectual, industrial or commercial property or right of a proprietary nature vested or held by the Institute, including:
any patent, Trademark (registered or unregistered), service mark or design;
any copyright or work of authorship, including graphic, video, podcast, or audio-visual creation;
BUYER OBLIGATIONS (300)
The Buyer shall…
SUPPLIER OBLIGATIONS (300)
The Supplier shall…
promote the Institute, and its Products and Services in a proactive,
<TITLE OF BOILERPLATE CLAUSE>
Notice of Dispute
If any dispute or difference arises between the Parties (“Dispute”), then a Party may give to the other notice in writing setting out the particulars of the Dispute (“Notice of Dispute”).
Within ten (10) Business Days of the service of a Notice of Dispute, senior executives of the Parties shall confer at least once to attempt to resolve the Dispute or to explore other methods of resolving the Dispute. At each such conference each Party will be represented by a person having authority to resolve the issues in Dispute. All aspects of every such conference, except the fact of its occurrence, will be privileged.
If the Dispute is not resolved within fifteen (15) Business Days after the service of the Notice of Dispute (or such further period as the Parties’ representatives may agree) either Party may by notice in writing to the other (“Mediation Notice”) require that the issue in Dispute be referred to a mediator (“Mediator”).
Selection of a Mediator
If the Parties have not agreed upon a Mediator within ten (10) Business Days from the service of the Mediation Notice, then either Party may apply to the President for the time being of the Law Society of Western Australia to appoint a Mediator.
The Parties must share equally the costs of the Mediator with the procedures for the mediation being determined by the Mediator. Both Parties will make best endeavours to deal with any mediation as effectively as possible to minimise any costs.
Exchange of Information
The Parties acknowledge that the purposes of any exchange of information or documents or the making of any offer of settlement under this clause 12 is to attempt to settle the Dispute between the Parties. Neither Party may use any information or documents obtained through the dispute resolution process established by this clause for any purpose other than an attempt to settle a Dispute between the Parties.
Notices, consents, requests, agreements or other documents authorised or required to be given or made in writing (“Notices”) may be signed by the Party giving or making the Notice and will be deemed to be duly given or made and served on the Party concerned by posting it as a prepaid registered or certified letter or sending by email addressed to the relevant Party at its email address or by personal delivery to the address of the relevant Party at its address.
Notices that are:
sent by registered post will be deemed to be served or given on the third Business Day after the date of mailing and must be accompanied by an email notifying of the mailing or by voice or voice message that the mail has been sent;
sent by email will be deemed to be served or given on the Business Day after they were despatched; and
delivered personally will be deemed served or given upon delivery.
Either Party may change its address for receipt of Notices at any time by giving written notice of any such change to the other Party.
This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and negotiations between the Parties.
No variation of this Agreement will be effective unless it is in writing and executed by both Parties.
If any provision of this Agreement is or becomes invalid, illegal or unenforceable the provision will be deemed to be severed from this Agreement but as far as possible all the remaining provisions will not be affected.
No waiver of any condition or covenant contained in this Agreement or failure to exercise a right or remedy by any of the parties hereto shall be considered to imply or constitute a further waiver by such Party of the same or any other condition, covenant, right, or remedy.
Governing Law and Jurisdiction
This Agreement shall be governed by, take effect and be construed in accordance with the laws in force in the State of Western Australia and the parties submit to the exclusive jurisdiction of the courts of that State.
EXECUTED as a DEED with effect from the Effective Date (xxx)
Executed as a Deed by <Party A BUSINESS Title> (ABN xx xxx xxx xxx)by its sole director and company secretary in accordance with section 127 of the Corporations Act:
) ) )
Signature <Student Name>
Executed as a Deed by <Party B BUSINESS Title> (ABN xx xxx xxx xxx)by its sole director and company secretary in accordance with section 127 of the Corporations Act:
) ) )
Signature <Fictitious Name>
-End of the Agreement-
(xxx) Executing the contract as a deed suggests that that each party is not exchanging something of value to the other party. Considering this contract is a bargain between the two parties, thus structured as a contract in terms of the Substantive Content, executing it as a deed could render the contract void.
Furthermore, a deed attracts a limitation period of 12-years which could be deemed unfair considering the nature of the goods being bargained. Thus a 6-year limitation under a standard contract should suffice in case of any breach. https://touchpointlegal.com.au/difference-contract-and-deed/
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