January 18, 2007.PPT

DA1:\464518\02\99980.0001 DA1:\464518\02\99980.0001 Discussion Topics Introduction Forum Selection Clauses Choice Conflicts of Law Clauses Indemnification Clauses Limitation on Liability Clauses Purchase Price Adjustment Provisions Arbitration Clauses Liquidated Damages Clauses Attorneys’ Fees Shifting Provisions Merger Integration Clauses Jury Waiver Clauses Contractual Limitations Periods Introduction No Such Thing as “the Perfect Agreement” Agreements must be tailored to the specific situation No one right way to do it Consider from the Outset: The parties with which you might be in a possible dispute The subject of a possible dispute Which state’s law might apply Remember – One Way to Avoid Legal Fees Later Is by Proper Drafting! Forum Selection ClausesGenerally Provision whereby parties agree that any litigation resulting from a contract will be initiated only in a specific forum Example: “The parties hereto consent to the exclusive jurisdiction of the courts of Dallas County, Texas.” Generally enforceable unless the resisting party can show the forum to be unreasonable under the circumstances Pros and cons of forum selection: You gain agreement up front on a choice of forum You may lose the right not to be subject to jurisdiction in that forum. May encourage settlement if the parties do not want to litigate (or if litigation is difficult) in the selected forum Forum Selection ClausesPitfalls Forum selection does not equal choice of law Should carefully consider selecting a governing law that is different from the forum jurisdiction Parties cannot create federal jurisdiction by contract. Alternatively, a motion for transfer or dismissal under a transfer of venue or forum non conveniens statute In Texas, when a trial court erroneously declines to enforce a forum selection clause, mandamus relief is available. See In re Automated Collection Techs., 156 S.W.3d 557, 558 (Tex. 2004). Choice Conflicts of Law ClausesGenerally Provision whereby par