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Better Boards Conference 2013. “But I thought we were Partners?!” Challenges, Risks and Realities of “Partnering”, “Sharing” and “Collaborating”. Victor Hamit B.Ec (Acc) LLB FAICD CTA Director Wentworth Lawyers Level 40 140 William Street, Melbourne [email protected]. - PowerPoint PPT Presentation
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Wentworth Lawyers
Better Boards Conference 2013
“But I thought we were Partners?!”Challenges, Risks and Realities of
“Partnering”, “Sharing” and “Collaborating”
Victor Hamit B.Ec (Acc) LLB FAICD CTADirectorWentworth LawyersLevel 40140 William Street, [email protected]
Liability limited by a scheme approved under the Professional Standards Legislation
Wentworth Lawyers
Memorandum of Understanding
MOU
Wentworth Lawyers
MOU
Memorandum of Understanding
Memorandum of Agreement
Statement of Intent
Statement of Agreement
Heads of Agreement
Statement of Principles
Statement of Undertaking Letter of
Intent
Wentworth Lawyers
MOU – Critical Factors
• Intention to create legal obligations Yes No In part
• Certainty What is it that we are trying to achieve?
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• Certainty can assist Non Binding MOU “By working co-operatively within
mutually beneficial working arrangements and within an accessible and integrated service framework …”
• Legal Status“Legal status: This MOU is not legally binding”
MOU
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Non Binding MOU – Perceived Advantages and Uses
• parties feel “bound”• greater moral commitment• reduces risk of misunderstanding• expression of intent to third party• “aide memoire” for formal contract• parties not legally bound
MOU
Wentworth Lawyers
MOU
• Partly binding examples
Confidentiality
Dispute Resolution
Intellectual Property
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MOU
• Why are we doing this?• What do we want out of it?Risks• Creating legal obligations when not
intended• Not creating legal obligations when
intended• Potential liability
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MOU
Do both parties have an agreed view of what these terms mean?
• “Partnering”• “Sharing”• “Collaborating”
Wentworth Lawyers
MOU
• “Partner” A sharer or partaker, an associate One of two people sharing a relationship, as a
married couple One’s companion in a dance A player on the same side with another in a game (Plural) Nautical fore-an-aft vertical metal plating
fitted underneath a ship’s deck to strengthen it where it is cut for a mast, capstan, pump, etc.
Macquarie Dictionary – Revised Third Edition
Wentworth Lawyers
MOU• Partnership
The state or condition of being a partner; participation; association; joint interest
Cricket the period during which the two people batting stay at the wicket together, usually with reference to the runs scored by them
Macquarie Dictionary – Revised Third Edition• Partnership – legal definition
The relation that exists between persons carrying on a business in common with a view to profit
Butterworths Concise Australia Law Dictionary Third Edition
• Partnership – MOU definition “Partnership means two or more organisations working
together based on a shared vision to achieve common goals”
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MOU• Common risks
Identify the parties Binding, not binding or part binding (be
clear) Confidentiality and Privacy Media statements IP ownership Risk assessment – potential for liability
(who bears it) Dispute resolution Objectives/outcomes
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MOU - Summary• Clarify your purpose or objectives• Legal obligations?• Certainty• Be clear• Think risk assessment – potential for
liability• Inevitably lack of clarity leads to
unhappiness
Wentworth Lawyers
Wentworth Lawyers
Better Boards Conference 2013
“But I thought we were Partners?!”Challenges, Risks and Realities of
“Partnering”, “Sharing” and “Collaborating”
Victor Hamit B.Ec (Acc) LLB FAICD CTADirectorWentworth LawyersLevel 40140 William Street, [email protected]
Liability limited by a scheme approved under the Professional Standards Legislation
Disclaimer:This presentation is of a
general nature only. Legal advice should be obtained in
relation to any specific circumstances.
