Contract Drafting: Agreement for Sale of Artwork: Exploring the Terms and Conditions

 

Introduction:

In the world of art, the sale and distribution of artwork involve various parties and agreements. This article aims to analyze an agreement between a client, running a platform for art trade, and a curator who deals with artists and art dealers. The agreement encompasses several terms and conditions that govern the sale and distribution of artwork. Let's delve into the key provisions and provide examples to illustrate their practical implications.

1. Parties and Definitions:

The agreement establishes the roles and responsibilities of the client, curator, artists, and art dealers. It defines essential terms such as "Art Dealer," "Artist," "Consignment," and "Artwork" to ensure clarity and consistency throughout the agreement. For example, an art dealer is described as a person engaged in the business of selling artworks, excluding those solely engaged in auctioning goods.

2. Interpretation:

To avoid ambiguity, the agreement outlines the order of priority for resolving conflicts or inconsistencies between the main agreement, schedules, and individual orders. This ensures that the terms specified in the relevant order prevail over conflicting provisions in the agreement or schedules.

3. Terms of Sale of Artwork by Curator:

This section focuses on the purchase and sale of artwork, including the buying price and different sale types. It establishes the obligations of the curator regarding the sale, delivery, and payment for artwork. Let's examine the sale types:

a) Consignment Basis:

Under this type of sale, the curator sells the artwork on behalf of the artist, transferring physical possession to the client's customers. The curator's payment is deferred until the client receives payment from their customers. The curator remains responsible for any loss or damage to the artwork during transit or return. The client is released from payment obligations unless the loss or damage is attributable to them.

Example: The curator consigns a valuable painting to the client, who subsequently sells it to a buyer. The buyer pays the client, who then remits the payment to the curator, deducting any applicable fees or commission.

b) Exclusive Basis:

In this arrangement, the client obtains exclusive rights over the curator's artwork, a specific artist's artwork, or a particular artwork for a specified period. The terms remain unchanged until the expiration of the agreed time or the sale of all artwork falling under the exclusive arrangement. Only the client can market, promote, and sell the artwork. The curator raises an invoice for the artwork upon acceptance by the client's customer.

Example: The curator grants the client exclusive rights to sell all of their artworks for one year. During this period, the client markets and sells the curator's artwork, paying the agreed buying price to the curator for each sold piece.

c) Purchase Basis:

Under this option, the client purchases the artwork outright, becoming the owner. The curator acts as a custodian and delivers the artwork to the client or their customers upon instruction. The curator bears the costs of holding and delivering the artwork, including insurance. Any returns are stored until the artwork is sold. The client pays the buying price upon receipt of full payment from their customer.

Example: The curator offers a sculpture for purchase. The client pays the agreed buying price, and the curator delivers the sculpture to the client's customer, who completes the payment.

 

Conclusion:

The agreement for the sale of artwork between the client and curator establishes a business relationship for the purpose of selling artwork created by artists. By defining key terms, interpreting conflicting provisions, and outlining terms of sale, the agreement ensures clarity and protection for all parties involved. The examples provided help illustrate how the agreement's provisions come into play in real-life art transactions.

Testamentary: The Importance of Gathering Necessary Information for Drafting a Will

 

Introduction

 

Drafting a will is a crucial step in ensuring the orderly distribution of your assets and the protection of your loved ones after your passing. To create a comprehensive and legally sound will, it is essential to gather specific information. In this article, we will discuss why the following information is necessary when preparing a will: personal information, details related to marriage, spouse, children, and marital status, a summary of assets and debts, and beneficiary designations.

 

Personal Information

 

Including accurate personal information in your will is crucial for identification and reference purposes. The following details are necessary:

a. Your Full Name (As per Pan Card or Passport): This ensures clarity and avoids any confusion regarding your identity.

b. Your Pan or Passport Number: It provides additional identification references.

c. Present Residential Address: Your current address helps establish your primary place of residence.

d. Permanent Address: If your permanent address differs from your present address, including it ensures completeness.

e. Occupation: Mentioning your occupation provides a clear understanding of your professional status.

f. Date and Place of Birth: Recording this information as per official identification documents (Pan Card or Passport) establishes your date and place of birth accurately.

 

Information related to Marriage(s), Spouse(s), Children, and Marital Status

 

Providing details about your marriage(s), spouse(s), children, and marital status is crucial for addressing familial relationships and potential claims. The following information is necessary:

A. Spouse(s):

a. Name of Spouse: Identifying your spouse(s) ensures their rightful inclusion in the will.

b. Date of Marriage: This establishes the duration of the marital relationship.

c. Details of Previous Marriage, Separation, or Divorce: If you have any prior marriage, separation, or divorce, providing these details helps address potential complexities.

 

B. Children:

a. Full Name of Children: Including the full names of your children ensures their accurate identification.

b. Date of Birth of Each Child: Recording the date of birth for each child establishes their age and seniority.

c. Marital Status of Children: Mentioning the marital status of your children provides a current snapshot of their relationships.

d. Details of Children from Previous Marriage or Stepchildren: If you have children from a previous marriage or stepchildren, including their details helps ensure their rightful consideration.

 

C. Your Marital Status: Specifying your marital status as married, divorced, or judicially separated clarifies your current legal relationship status.

 

Summary of Assets and Debts

 

A comprehensive understanding of your assets and debts helps determine the estate's value and guide distribution. The following information is necessary:

ASSETS

A. Immovable Property: Include details of properties you own, including their description, full address, identification, and possession status. Additionally, provide information on ancestral properties, if applicable, along with their definition and lineage connection.

B. Movable Property: List your movable assets, such as vehicles, jewelry, and personal belongings of sentimental value.

C. Bank Details and Balances: Provide information on your bank accounts, including the bank name, branch details, and current balances.

D. Cash Balances: Mention the location and means to access any cash balances you possess.

E. Shares: Record details of any shares you hold, including the description, share certificate numbers, and their present market value.

F. Life Insurance Policies: Include the names of insurance policies, policy numbers, insurance company details, and nominations made within these policies.

G. Businesses Owned: If you have ownership interests in businesses like proprietorships, partnerships, or private companies, provide relevant details.

H. Household Furnishings and Personal Belongings: Make a list of items like furniture, cars, boats, and other personal belongings that hold sentimental value.

I. Other Assets: Include any assets not covered above and provide relevant details.

 

DEBTS

J. List of Debts: Include any outstanding loans, mortgages, guarantees, promissory notes, and specify the amounts owed and the respective creditors. If you act as a guarantor for someone, provide details of the guarantee.

 

Beneficiaries

 

Determining the beneficiaries of your assets and personal belongings is a vital aspect of drafting a will. The following considerations are necessary:

a. Bequeathing Assets: Clearly state who you want to inherit or share each asset, specifying the percentage or amounts.

b. Specific Personal Possessions: Identify any personal possessions you want to assign to specific beneficiaries, describing them in detail.

c. Alternative Beneficiaries: Designate alternative beneficiaries in case the primary beneficiaries predecease you or cannot be located.

d. Testamentary Trust: Consider setting up a testamentary trust to manage some or all of your assets on behalf of your spouse or children.

e. Minor or Disabled Children: Determine at what age your children should have access to their bequests and specify any provisions for disabled children.

f. Executor/Trustee Powers: Decide whether you want your executor or trustee to have the power to manage investments/assets to maximize returns rather than immediately liquidating them.

g. Residual Assets: Specify who will inherit any residual or undisclosed assets or future assets.

h. Debts: Indicate how the listed debts (mentioned under 3J) will be paid by the beneficiaries and their proportional responsibilities.

 

Conclusion

 

Gathering the necessary information outlined above is essential for drafting a comprehensive and accurate will. By providing personal information, marital details, asset and debt summaries, and beneficiary designations, you can ensure that your will reflects your wishes and protects the interests of your loved ones. Remember to consult with legal professionals to ensure the proper execution of your will in accordance with relevant laws and regulations.

WILL AND PROBATE: Demystifying Probate: Understanding the Application Process

 

Introduction

Probate is a legal process that validates and administers the estate of a deceased individual. It involves obtaining the necessary legal authority to distribute the deceased person's assets and settle their debts. In this article, we will explore the application process for probate, as outlined in the Bombay High Court Original Side (OS) Rules and the Indian Succession Act, 1925.

Application for Probate

Petition Submission: The application for probate is made through a petition, as per Rule 374 of the Bombay HC OS Rules. The petition should be accompanied by a copy of the deceased's last will and testament, along with an official translation if the will is not in English. The original will is filed separately and kept securely by the Prothonotary and Senior Master.

Schedule of Property and Credits: A schedule of the property and credits owned by the deceased at the time of their death, which may come into the petitioner's possession, is annexed to the petition. This schedule helps in determining the net estate of the deceased.

Schedule of Debts and Trust Property: The petition also includes a schedule of the deceased's debts and other items that can be deducted to ascertain the net estate. Additionally, if the deceased held any property in trust for another person without a beneficial interest, it should be listed in a separate schedule.

Required Documentation: The petition for probate must be accompanied by specific documents, including:

a. Vakaltnama: This is a document signed by the petitioner's lawyer, authorizing them to represent the petitioner.

b. Executor's Oath: An executor, if appointed, needs to submit an oath stating their willingness to act in the best interests of the estate.

c. Affidavit of Attesting Witness: If available, one of the witnesses who attested the will may provide an affidavit.

d. Copy of Estate Duty Return: If the estate duty return has been filed with the Controller of Estate Duty, a copy of it should be included.

Forms and Variations: The petition and accompanying schedules follow specific forms outlined in the Bombay HC OS Rules. Forms No. 97, 98, 99, and 100 are used for the petition and schedules, with variations based on the circumstances of each case.

Application for Letters of Administration

 

Cases with a Will: If the deceased left a will, the application for letters of administration is made through a petition, as stated in Rule 375 of the Bombay HC OS Rules. The process is similar to the probate application, where the copy of the will, schedules, and required documents are submitted along with the petition.

Cases without a Will: In situations where the deceased did not leave a will, the application for letters of administration is made through a petition, as per Rule 376 of the Bombay HC OS Rules. The petition includes the schedules of the deceased's property and credits, debts, and trust property. The required documents, such as the vakalatnama and administrator's oath, are also submitted.

 

Application for Succession Certificate

Petition Submission: The application for a succession certificate is made through a petition, as per Rule 377. The petition should include a schedule of the deceased's property for which the succession certificate is being sought.

Required Documentation: The petition for a succession certificate should be accompanied by the vakalatnama, petitioner's oath, and a copy of the estate duty return if it has been filed.

 

Conclusion

 

Obtaining probate or letters of administration is essential for the orderly administration of a deceased person's estate. By following the prescribed application process and adhering to the relevant rules and regulations, individuals can navigate the probate process effectively. The Bombay HC OS Rules provide clear guidelines, forms, and variations for the submission of petitions, schedules, and supporting documents. It is important to consult legal professionals for guidance and assistance throughout the probate or administration process.

OTHER INFORMATION THAT YOU SHOULD GO THROUGH IN ANY PROBATE AND ADMINISTRATION MATTERS –

·        Title of Applications under the Indian Succession Act, 1925

·        Application for Probate or Letters of Administrations

·        Age of minor to be stated

·        Probate or Letters of Administration with Will annexed

·        Particulars in caveat

·        Notice of caveat

·        Order for grant of Probate

·        Decree

·        Form of inventory

·        Form of account

·        Extension of time to file inventory or accounts

·        Administration Bond

·        Preservation and inspection of Wills

 

 Formation and Registration of Trust/Societies: Understanding the Formation and Structure of Trusts and Memorandum of Understanding (MOU)

 

Introduction

Memorandum of Understanding (MOU) serves as a foundational document for establishing trusts, societies, and associations. In this article, we will explore the process of structuring and forming a trust using a hypothetical example. Specifically, we will delve into the registration process of forming a society or public trust based on the provisions outlined in the MOU of the "Prem Niwas Tenants Association."

Registration Process for Trusts and Societies

The formation of a trust or society typically involves a registration process to establish legal recognition and formalize its existence. The following steps outline the general process for registering a trust or society:

1. Name Reservation: Choose a unique name for the trust or society. In the case of the "Prem Niwas Tenants Association," the chosen name is "Prem Niwas Tenants Association." Verify the availability of the name with the appropriate regulatory authority responsible for registrations.

2. Drafting the Memorandum of Understanding (MOU): Prepare a comprehensive MOU that outlines the objectives, rules, and regulations of the trust or society. The MOU should clearly define the name and address of the association, along with its aims and objectives, as demonstrated in the example provided earlier. To understand it further more read the other blog linked here[https://lexinhousecounsel.blogspot.com/2023/05/drafting-understanding-formation-and.html]

3. Gathering Required Documents: Collect the necessary documents required for the registration process. This typically includes identification proof, address proof, and photographs of the individuals who will serve as office bearers or trustees.

4. Application Submission: Submit the application for registration along with the MOU and supporting documents to the appropriate regulatory authority. In India, the registration process for societies and public trusts is governed by specific acts, such as the Societies Registration Act, 1860, and the Indian Trusts Act, 1882. The designated authority will vary depending on the jurisdiction.

5. Verification and Approval: Upon receiving the application, the regulatory authority will verify the submitted documents and conduct necessary checks. This may involve reviewing the MOU, confirming the eligibility of the office bearers, and ensuring compliance with relevant laws and regulations.

6. Registration Certificate: If the application meets all requirements and is approved, a registration certificate will be issued by the regulatory authority. The certificate serves as proof of the trust or society's legal existence.

7. Bank Account Opening: After obtaining the registration certificate, the trust or society can open a bank account in its name. This account will be used for managing funds, collecting contributions, and carrying out financial transactions related to the association's activities.

 

Conclusion

 

The registration process is a crucial step in establishing the legal recognition and formal structure of a trust or society. By following the appropriate procedures, submitting the required documents, and adhering to the regulations governing the formation of trusts and societies, organizations like the "Prem Niwas Tenants Association" can obtain legal recognition and pursue their stated objectives. The Memorandum of Understanding (MOU) serves as a foundational document, outlining the association's name, address, objectives, and management structure, and guiding its activities towards achieving its goals.

 Drafting: Understanding the Formation and Structure of Trusts in Memorandum of Understanding (MOU)

 

Introduction

Memorandum of Understanding (MOU) serves as a foundational document for establishing trusts, societies, and associations. In this article, we will explore the process of structuring and forming a trust using a hypothetical example. Specifically, we will delve into the registration process of forming a society or public trust based on the provisions outlined in the MOU of the "Prem Niwas Tenants Association."

Name and Address of the Association

The association is named "Prem Niwas Tenants Association." Its principal office is located at C/o Room No 4, Prem Niwas Chawl, D’monte Lane, Orlem, Malad West, Mumbai – 400064. The MOU also allows for the possibility of changing the office location by mutual agreement among all members or the Managing Committee, if one is selected by the members.

Objects of the Association

The MOU outlines the objectives and aims of the association, which include:

a. Running, operating, maintaining, handling, and managing the day-to-day affairs of the association and/or the Residence Place of Members (RPoM) for the welfare and betterment of its members.

b. Collecting and depositing funds or contributions made by members or any person approved through a resolution by all members. The collection methods include demand drafts, pay orders, cheques, or cash (not exceeding Rs. 50,000/- or any maximum allowable limit under the law). The funds are to be deposited in designated banks for the purpose of day-to-day maintenance or any other purpose agreed upon by the members, which may include the development or redevelopment of RPoM.

c. Utilizing, managing, and investing the funds available in the designated bank accounts for day-to-day maintenance, generating income for the association, or any other purpose unanimously agreed upon by the members. This may also involve further development or redevelopment of RPoM.

d. Providing assistance to individuals affected by natural calamities, such as earthquakes, floods, or droughts, by arranging shelter based on member recommendations. The assistance provided should not exceed 5% of the funds collected in that month, unless all members unanimously agree otherwise. However, the assistance provided should not exceed the income generated from the collected or earned funds in that month.

e. Striving for the welfare and upliftment of association members or their dependents (e.g., old parents, spouse, or children) by improving their social, educational, and cultural status.

f. Organizing social gatherings, functions, and celebrations of national holidays to promote friendship and brotherhood among the members. Examples of such holidays include Independence Day (15th August) and Republic Day (26th January).

g. Conducting cultural and other programs in the vicinity of the association and its surrounding areas for the benefit of association members.

Management of the Association

The management of the association's affairs is entrusted to a Managing Committee. The specific members of the committee will be determined according to the rules and regulations of the association. The current members of the committee are not specified in the MOU and will likely be appointed or elected based on internal procedures.

 

Conclusion

The MOU plays a crucial role in establishing the structure and objectives of an association, such as a trust or society. In the case of the "Prem Niwas Tenants Association," the MOU defines the association's name, address, objectives, and the management structure. These provisions serve as a framework for the formation and functioning of the association, guiding its activities and ensuring a clear path toward achieving its stated goals.

 Dispute Resolution: Resolving Disputes and Achieving Amicable Settlement in License and Service Agreements

 

Introduction

Disputes arising from license and service agreements can be complex and potentially disruptive for both parties involved. However, it is possible to reach an amicable settlement that allows for the termination of the agreements and the resolution of all related claims and disputes. This article explores a real case study scenario and outlines the steps used to close a dispute on the withdrawal of a license and services, leading to a mutually beneficial resolution.

 

Background

In this example, a Software License and Service Agreement was entered into on June 30, 2006, between a Licensor and a Licensee. The agreement involved the licensing of specified software for the Licensee's internal use and the provision of related services. Over time, disputes arose between the parties, prompting them to seek a resolution and terminate the agreements.

Amicable Settlement Agreement

The Licensor and the Licensee have mutually agreed to terminate the Agreements and settle all claims, disagreements, differences, and disputes related to or arising from the Agreements. This settlement aims to provide a final and amicable resolution, without further liabilities to either party, except as expressly agreed upon in writing.

Key Provisions for Amicable Settlement

To fully give effect to their intentions, the Licensor and the Licensee agree to the following provisions:

Termination of Agreements: The Agreements, along with any actions, claims, or counterclaims initiated or made by either party, shall stand terminated without consequences or liabilities for either party.

Waiver of Rights: Both the Licensor and the Licensee expressly and unconditionally waive all their rights under the Agreements. This waiver is in consideration of reciprocal promises and unconditional undertakings from the other party, forming the basis of this Agreement. As a result, all claims, counterclaims, or demands against each other are withdrawn.

Non-Action Covenant: Both the Licensor and the Licensee covenant not to make or bring any action or claim against each other or their respective successors and assigns. This covenant covers all actions, claims, losses, liabilities, damages, costs, charges, and expenses related to or arising from the Agreements, directly or indirectly.

 

Asset Delivery: As part of the settlement, the Licensor delivers physical or constructive possession of specific assets owned by the Licensee, such as an IBM Server and Firewall. Additionally, the Licensor provides a backup copy of the application and data available on their servers. The Licensor's premises, located at ABC, house these assets, which will be collected by an authorized representative of the Licensee. The Licensee retains the right to install and run the application for accessing the backup data at their premises.

Confirmation of Settlement: Both the Licensor and the Licensee confirm, covenant, and declare that they have no further claims against each other relating to or arising from the Agreements.

 

Conclusion

Closing a dispute on the withdrawal of a license and services can be achieved through an amicable settlement agreement. By mutually agreeing to terminate the Agreements and resolving all claims and disputes, both parties can reach a final resolution that allows them to move forward without further liabilities. Clear provisions, such as waivers of rights and non-action covenants, contribute to a harmonious settlement. In the above scenario outlined, the Licensor's delivery of assets and data reinforces the settlement's terms, ensuring the Licensee's continued access to necessary resources.

IPR Category: Analytical CASE Study on Escrow Terms in DEF Software License Agreement

 

Introduction

In a recent agreement between DEF and Tech_Company, the inclusion of escrow terms has become a topic of discussion. This study examines the circumstances under which the escrow arrangement can go to DEF and analyzes the implications of termination on the rights to the source code. While maintaining confidentiality by referring to the entities involved as "ABC" and "XYZ," we delve into the legal and practical aspects surrounding the agreement.

 

Escrow Events and Source Code Ownership

The agreement identifies two distinct events that can trigger the transfer of escrow to DEF. The first event encompasses bankruptcy, insolvency, dissolution, amalgamation, winding-up, or any similar occurrence affecting Tech_Company. The second event arises when Tech_Company formally communicates its inability or unwillingness to provide support for the software applications.

In the event of termination with a 90-day prior notice for convenience, as stated in Clause 10.2 of the agreement, DEF is obligated to return all confidential information, including the source code associated with the software applications Orion and Merlin. Although the cost of storing the source code may be borne by the bank, arguments may arise regarding its retention. However, DEF has the right to resist accepting the source code in this scenario.

 

Case Law and Source Code as Confidential Information

Page 49 of the contract (page 51 of the PDF file) references Schedule N – Part B, which covers the termination of the contract. Within this context, case law is referred to establish that source code falls under the category of confidential information. Statutes can serve as exceptions to this rule, as evident from the case law discussed.

A notable case involving a breathalyzer manufacturer provides an interesting precedent. The maker of the breathalyzer device, referred to as "ABC," declined to comply with a judicial order requiring them to allow an expert hired by defense attorneys to review the source code for the software used in the device. The court, relying on previous cases, emphasized the importance of producing full information about the operation of computerized devices used as evidence in court. This information includes source code, manuals, troubleshooting guides, and other relevant materials.

The court's ruling suggests that the defense has the right to challenge the evidence presented against their client by understanding the computer program's functionality. The court prioritized the due process rights of the accused over the manufacturer's claim of trade secret protection. Furthermore, it highlighted that non-disclosure cannot be justified solely by the argument that the source code is not within the immediate possession of the state.

Implications and Protection of Trade Secrets

The State of Florida, in this particular case, did not contest materiality or irreparable harm nor propose alternatives, which influenced the court's ruling in favor of the defendants. Florida statute Section 90.506 allows for trade secret privilege unless it would "otherwise work injustice." The court ordered protective measures, limiting access to the source code to only the defense expert and prohibiting copying or retention.

The defense expert's testimony in the case underscored the importance of scrutinizing the EPROMs (erasable programmable read-only memory chips) within the breathalyzer machines. The court acknowledged the need for independent testing by an external entity, independent of the manufacturer, to ensure accuracy and fairness. The judges concluded that full information about the instrument used to establish guilt should include access to the software that operates the device. Denying the defendant access to the software would undermine their ability to inspect and challenge the evidence, violating their constitutional rights.

 

Conclusion

The study on the escrow terms in the DEF Agreement sheds light on the significance of source code in confidential information and the right of defendants to access it for fair defense. The case law discussed exemplifies the importance of providing full information about computerized devices used as evidence in court, including the source code. The court's ruling emphasized the constitutional rights of the accused over claims of trade secret protection, underlining the necessity of transparency and due process.

 Negotiation Tips: Software Licensing or Development

 

When engaging in negotiations for software licensing or development, it is important for intellectual property rights (IPR) owners to consider the following guidelines:

 

Software Licensing Agreement:

 

The validity of an escrow arrangement is contingent upon full and timely payment under the license agreement and subsequent maintenance agreement.

If affiliates or subsidiaries are to enjoy the benefits of licensing rights, the interpretation should be limited to existing entities that fall within the respective definitions and were present at the time of executing the licensing agreement.

In the event that escrow materials need to be handed over due to support stoppage, the transfer value or shareable value should be determined based on the written down depreciation value of the source code. These materials are strictly for internal use, and any commercial use, such as selling or sharing the source code for profit, is prohibited. Therefore, the cost of the escrow material is not the cost of the source code itself but rather the cost of access rights to the source code for internal development and maintenance purposes only.

 

Customization of Software or Interface Development (Inputs Exclusively from the Customer):

 

In the case of exclusive inputs from the customer, granting ownership of the intellectual property rights (IPR) to the customer is essential. However, the IPR owner should retain restricting rights, allowing the customer to use the software only once payment has been made in full.

If the source code is provided when the software is live, the handover should not restrict the development of similar or identical software, modules, or interfaces for other customers. This is permissible as long as the new software is developed independently, without using the same code, and tailored to suit the specific requirements of each customer. The IPR owner must also uphold the confidentiality obligations agreed upon in the agreement.

 

In order to ensure a clear scope of deliverables in customization agreements, it is mandatory for both parties to execute a Business Process Study and Gap Analysis. In the event of timeline disputes and the absence of such documentation, a panel of three experts ("BenchMarkers") from commercial, technical, and HR backgrounds should be appointed. This panel evaluates the project based on time invested, resources utilized, and the cost of the project. Each party nominates one member, and these two nominated members subsequently nominate a presiding member. The presiding member prepares a "Draft Report" which is then sent to both parties for their comments. The final version of the report is referred to as the "Final Report." If either party is dissatisfied with the "Final Report," the Dispute Resolution Mechanisms available under the agreement should be invoked for a settlement. (Note: The nominated members can be neutral or external parties, and the costs associated with each nominated member will be borne by the respective party nominating them. The cost of the presiding member will be shared equally by both parties. It is important to ensure that the nominated members have no association with the competitors of either party to maintain fairness and impartiality in the resolution process.)

 

Every licensing or customization agreement should clearly specify the designated place or jurisdiction of software usage. Any change in legal status due to acquisition or merger should be commercially and operationally reviewed to determine if onsite support is required. Expenses related to personnel or expert travel, lodging, and other activities required for commuting should be reimbursed based on actual costs, along with pocket expenses.

 

Taxes applicable to the services under this agreement should be borne by the customer and levied at the latest applicable rate during billing. The customer has the right to deduct tax on income, and it is obligatory for them to issue a certificate of such tax deduction in the same financial year. Failure to issue the certificate within 30 days of deduction or before the 30th of April of the subsequent financial year, for deductions made in the preceding financial year, entitles the IPR owner to claim the money as a legal due. The IPR owner can recover the amount, along with applicable interest rates as per the law.

 

By adhering to these negotiation tips, IPR owners can optimize their software licensing and development agreements, promoting effective collaborations and reducing the likelihood of disputes.