WHY YOU SHOULD ALWAYS INCLUDE AN ARBITRATION CLAUSE IN A CONTRACT DOCUMENT

An arbitration clause is a provision in a contract that requires the parties to resolve any disputes that may arise through arbitration rather than through court litigation. The act defines an Arbitration as, a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. (Arbitration Act 1995).

It is important that when parties are drafting, negotiation or to always include a Dispute resolution method clause in the document, there are several Dispute resolution methods, Arbitration being at the core of them all. Here are some reasons why you may need to have an arbitration clause in every agreement:

1. Faster and Less Expensive Dispute Resolution: Arbitration is typically faster, less formal, and less expensive than court litigation. With an arbitration clause, the parties agree to avoid the expense and delay associated with court litigation.
2. Expertise and Neutrality: The parties can select an arbitrator with expertise and experience in the subject matter of the dispute, which can lead to a more informed and neutral resolution.
3. Privacy: Arbitration proceedings are generally private and confidential, which can be beneficial if the dispute involves sensitive or proprietary information.
4. Enforceability: Arbitration awards are generally easier to enforce than court judgments. If the losing party refuses to comply with the decision, the winning party can obtain a court order to compel compliance.

In conclusion, including an arbitration clause in every agreement can provide benefits such as faster and less expensive dispute resolution, expertise and neutrality, privacy, and enforceability. However, it is important to consult with legal counsel to ensure that an arbitration clause is appropriate for your specific situation.

How can we assist?

The success of a business is pegged on how well it protects itself from loss and harm arising from contractual relationships. Such loss and harm is prevented or reduced by having an understanding of how contracts/agreements are drafted and negotiated. At Netsheria International, we offer a wide scope of legal documents and legal to meet the requirements for different businesses. For more information, kindly visit our website or contact us via email.

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BEWARE OF THESE RED FLAGS!!!!

Many clients have been asking us how to tell that a contract/agreement is not favorable, considering all clauses have been stated in the agreement. Some have signed and gone into contracts without noticing the RED FLAGS that can later cost them or make them lose millions of shillings. Below are the 9 examples of RED FLAGS to look out for in an agreement.

1. Unclear or ambiguous language: Any ambiguity in the contract can lead to disputes and disagreements down the line. Make sure all terms and language are clearly defined.
2. One-sided terms: A contract should be a mutually beneficial agreement. If one party is getting a significantly better deal than the other, it may be a red flag.
3. Missing or incomplete information: A contract should include all necessary details and information. If any key information is missing or incomplete, it could cause problems during the contract period.
4. Non-disclosure clauses: Non-disclosure clauses can be helpful in protecting confidential information, but they may also limit your ability to share or use certain information.
5. Lack of flexibility: Contracts that are too rigid may not account for unforeseen circumstances or changes in circumstances.
6. Short-term focus: Contracts that are focused solely on short-term gains may not account for long-term implications or consequences.
7. Lack of legal review: Contract negotiations should always be reviewed by a lawyer to ensure the terms are fair and legally binding.
8. Excessive demands: If one party makes excessive or unreasonable demands, it may be a sign that the other party should walk away from the deal.
9. Requesting that the work or the job commences without signing the contract first is a big red flag, often times the other party is not willing to commit or may not pay for the services offered to them and you shall have no proof of an agreement because it was not signed.

In conclusion, always be aware of these red flags before signing any contract or agreement.

How can we assist?

The success of a startup is pegged on how well it protects itself from loss and harm arising from contractual relationships. Such loss and harm is prevented or reduced by having understanding how contracts/agreements are drafted. At Netsheria International, we offer a wide scope of legal documents that can be tailored to meet the requirements for different businesses. For more information, kindly visit our website.

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WHY REPRESENTATIONS AND WARRANTIES ARE A MUST HAVE CLAUSE IN YOUR AGREEMENT

Representation and warranty clauses are an essential part of any agreement as they help to provide a level of assurance and protection to all parties involved in the agreement. These clauses are typically included in contracts or other legal documents, and they serve to outline the rights, obligations, and responsibilities of each party.

Representation clauses are used to confirm the accuracy of certain information or facts related to the transaction. This includes information about the parties involved, the assets being transferred, and any obligations that are being assumed as part of the agreement. For example, if a company is acquiring another company, the representation clause might state that the target company has no outstanding legal or tax issues, and that they own all of their intellectual property rights.

Warranty clauses, on the other hand, are used to provide a guarantee or promise related to the transaction. This includes guarantees related to the quality of the goods or services being provided, and the ability of the parties to fulfill their obligations. For example, if a company is selling a product to a customer, the warranty clause might state that the product is free from defects, and that the company will replace or repair any defective products within a certain time frame.

EXAMPLES OF REPRESENTATION AND WARRANTY CLAUSES YOU MAY HAVE INCLUDE IN YOUR CONTRACTUAL AGREEMENT

1. The seller represents and warrants that it has full power and authority to execute, deliver and perform this agreement and the transactions contemplated herein.
2. The buyer represents and warrants that it has sufficient funds to complete the purchase of the assets and that it is not aware of any circumstances that would prevent it from completing the purchase.
3. The seller represents and warrants that it is the legal and beneficial owner of the assets and that it has good and marketable title to the assets, free and clear of all liens, mortgages, charges, claims, and encumbrances.
4. The buyer represents and warrants that the purchase of the assets will not violate any law, regulation, order, or judgment of any court, or any agreement to which the buyer is a party.
5. The seller represents and warrants that the assets are in good and saleable condition and that there are no material defects that would materially affect the value of the assets.
6. The buyer represents and warrants that it has conducted sufficient due diligence with respect to the assets, and it is satisfied with its findings.
7. The seller represents and warrants that it has obtained all necessary consents, authorizations, and approvals required for the sale of the assets.
8. The buyer represents and warrants that it will comply with all applicable laws and regulations in connection with the ownership and operation of the assets.
9. The seller represents and warrants that it is not aware of any litigation or other proceedings that would materially affect the value of the assets.

In summary, representation and warranty clauses are important because they help to clarify the terms of an agreement, provide assurance to all parties involved, and reduce the risk of misunderstandings, disputes, and legal issues.

How can we assist?

The success of a startup is pegged on how well it protects itself from loss and harm arising from contractual relationships. Such loss and harm is prevented or reduced by having understanding how contracts/agreements are drafted. At Netsheria International, we offer a wide scope of legal documents that can be tailored to meet the requirements for different businesses. For more information, kindly visit our website. 

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The 5 Types of Construction Contracts You Need to Know

A construction contract can be defined as a legal document that is can be entered into between all parties involved in the construction and details the scope and terms of the project or development.

There are 5 types of construction contracts. These are:

1. Lump sum contract– This contract sets a fixed total price for the entire project rather than individual aspects. In most cases, it is set for straightforward projects with a clearly defined scope of work. For instance, a software installation company may enter into a lump sum contract for installing multiple data processing systems in a building. The installation company would receive a lump sum upon completion of the project. Lump sum contracts involve a fair amount of risk for contractors because they don’t take into consideration the unexpected costs or delays after the project is started.

The downside of lump sum contracts are that one may make less money, or, even worse, lose money on a construction project.

2. Time and materials contract– This contract works best for projects in which the scope of work is not well-defined. It is entered into where contractors of a project are reimbursed for the cost, materials, and labor at an agreed pay rate; daily or hourly. This is often used for projects without a clearly defined scope of work. For example, where a client wishes to redo their veranda, the contractor is expected to look at the scope of the work/ project, the materials required and the expected time to complete the work.
3. Cost-plus contract– This contract is also known as a cost- reimbursement contract. It is entered into where the owner pays the contractor for direct costs such as materials and labor, and indirect costs such as all overheads incurred during the project, travel and insurance expenses as well as a preset profit margin. The importance of this contract is that it offsets contractor risk for projects that involve design changes. The majority of the risk is borne by the owner/ developer. This is because the contractor gets to be paid for all costs incurred during the project and any unforeseen expenses are borne by the owner/ developer. For example, where a XYZ Limited, a construction company is hired to construct a property for a consideration of Kes 20 million, subject to it been completed within 12 months, if the project is completed within 11 months, they are subjected to a 5 % incentive of the total consideration of Kes. 20 million.
4. Unit price contract– This contract is also known as measurement contracts, measure and pay contracts, or remeasurement contracts. It divides the work to be completed into separate units, which the contractor bills for individually. The importance of this contract is that it allows the construction work to start before the full extent of the project can be determined. This removes the risk of inaccurate estimation of the quantities. For example, the cost of constructing a road might have been laid out based on an approximate estimate of the distance required, and then the actual payment calculated based on the final length of the road.
5. Guaranteed Maximum Price (GMP) contract– This contract seeks to establish an upper limit for construction costs and contractors absorb costs above this set point. This means that customers agree to reimburse the contractor for labor costs, cost of purchase of materials and the contractor’s fee that cover profits. This contract is best suited to projects with few unknowns, meaning that the building plans have been repetitively used and thus removing any uncertainty.

The key advantage of a GMP contract is that it shifts the risk to the contract since the owner does not pay for any cost overruns.

Conclusion

Every construction project requires properly drafted contracts that seek to protect the interests of the parties. At Netsheria International LLP, we offer various construction contracts that seek to protect the interests of the parties. For more information, visit our website at www.netsheria.com

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