Laura Frederick’s Post

View profile for Laura Frederick

CEO @ How to Contract | Helping lawyers and in-house teams get better at contracts and managing risk

Today's contract tip is about defining "delivery" in your contract. Requiring the seller to deliver seems simple enough. But the operational realities of delivery are often very complex. Here are a few things to consider as you structure delivery concepts in your agreement. 1. Where are the goods delivered? If you selected EXW for your Incoterm, you are taking delivery at whatever location is listed right next to the EXW acronym. Often, the location is vague and undefined, such as “Seller’s designated facility.” That facility could be across the country or on the other side of the globe. Taking delivery in a foreign jurisdiction may be enough to create a tax or another nexus. Are you ready to file tax returns and make the regulatory filings needed for that jurisdiction? 2. What does it mean to be delivered? Think through what delivery means for the products you are buying or selling. For example, if you buy a system, does delivery mean the first part arrives or the last? Is it delivered if it has not yet been installed or tested? And what if it arrives broken? Should that count as delivery? 3. What if the goods don't meet specifications? As a customer, I prefer to define delivery as physical delivery of the goods that conform to the specifications. That way, if the product is defective, the vendor is pressured to replace it quickly. Otherwise, the contract's consequences for failing to "deliver" by the delivery deadline may kick in. What other issues do you address when thinking about that moment of delivery? #HowToContract #Contracts #Definitions

  • No alternative text description for this image
Aninda Mitra BE (Civil) LLM (Construction Law)

Senior Contracts Specialist - Construction Contracts

10mo

In the event of a vendor's design being finalized and notification issued, it is incumbent upon them to adhere to the agreed delivery sequence. Let's say a crushing Plant. Esteemed manufacturers acknowledge their liability should the materials prove not fit for purpose during the testing phase. Any damages incurred will be underwritten by insurance. To guarantee the material specifications are met, factory inspections and active collaboration with the manufacturing company are imperative. Moreover, the time liability for the release of goods from the factory for shipment can be judiciously curtailed by imposing a penalty for delays, thereby incentivizing timely performance. 

Like
Reply
Nicholas Ørum Keller

Attorney | Partner | Veteran | M&A | Employment law | Marketing law

10mo

Thank you for your great posts! Regarding delivery we (Denmark 🇩🇰) - as a civil law country - have extensive background legislation which also governs “delivery” if nothing else is agreed. Although our background legislation does not fix everything, it goes a long way for physical goods. We do have one piece of legislation on delivery that never made sense to me: goods are considered “delivered” as soon as “seller” has handed the goods over to a third party courier (but not if seller delivers it themselves). Makes no sense why the risk should be transferred to the “buyer” at such early point in time IMO. And don’t get me started on the legal distinction between when a courier is in fact “third party” and not “affiliated with seller”.

Like
Reply
Mohammed Hill

General Counsel & Corporate Secretary at Dark Horse Consulting Group | xZoom | XMeta | XVisa

10mo

I was burned once by delivery that did not include installed and tested for conformity to specs. Painful lesson

Deepak Sarawagi

Contract Admin at Bechtel

10mo

Many contracts and Procurement uses INCO terms loosely, probably because of lack of knowledge or poor knowledge of potetial consequences. In delivery, use of INCO terms together with the reference year of the INCO terms is most important. Apart from the buyer / seller ownership risks, it's the cost of shipment (which you mentioned Laura Frederick ) and pptential disputes when relationship goes bad. If Inco terms loosely used, dispute regarding applicable taxes, custom duties and demurrage may arise.

Peter Sykes

Technology, Infrastructure Contracts & IP Commercial Law | Senior Legal Counsel 15yr+PQE Solicitor (Eng&Wales)

10mo

Always think about where the place of delivery is beyond a mere address. Sometimes I define the "Designated Location" for expensive hardware which is to be agreed on a case by case basis. Otherwise it could be signed for by a cleaner and left at a loading bay unmanned and stolen/lost/forgotten.

Like
Reply

There is a difference between "delivery" and "acceptance". I make sure the criteria is clear. In most cases "delivery" is not sufficient. I try to make sure the "acceptance" criteria is specific. I also need to keep in mind how I will be paid.

See more comments

To view or add a comment, sign in

Explore topics