Working With Lawyers – How to Find the Right Lawyer(s)- Key characteristics to look for in a lawyer - Reputable,Knowledge and expertise in relevant subject area ,Experience-How to look for a lawyer-Seek recommendation from friend, colleague or another lawyer,Consider use of Law Society referral service,Conduct Internet searches,Firm web sites,Ranking sites ,Try to confirm selection with trusted source-Working With Lawyers – THE Retainer Letter- Matters to be Covered in a retainer letter: Description of services to be provided by law firm, Names of partner(s), associate(s), student(s), and law clerk(s) who will be providing services,Duties of law firm,Confidentiality ,Use of personal information. Matters to be covered in a retainer letter (con’t):Arrangements for payment,Will fees be determined based on:Hourly rates by time expended,Hourly rates by time expended, with an estimate of total fees,Hourly rates by time expended, subject to a cap,Fixed amount,Contingency fee basis (lawyer is paid only if successful outcome achieved),Retainer amount, to be deposited into trust account.How often are bills rendered: e.g., monthly or upon completion of services -Working With Lawyers – Styles and Approaches- In most instances, the client drives the approach used,Common examples: Client wants lawyer to take complete control of file (but lawyer should still consult with ,client at key stages),Client wants to micromanage the file ,Client wants to learn from lawyer,Client wants lawyer to make key decisions,Client wants lawyer to take very aggressive approach (win everything at all costs),The fit of the approach matters,Fits your project management style?,Fits your employer’s style?,Fits the circumstances?,Well-suited to the lawyer who is being used?,There are advantages and disadvantages to each approach-Complaints About Lawyers-Law Society provides for a process allowing clients to make,Complaints about lawyer’s conduct,Types of complaints that may result in disciplinary action if legitimate: Financial impropriety (e.g., misappropriation of money held in trust account),Negligence (e.g., failure to identify problems with title to property in real estate deal),Misuse of confidential information,Conflict of interest,Failure to

communicate,Any other breach of lawyer’s code of conduct (e.g., integrity, civility, etc.), Lawyers may be subject to disciplinary proceedings before Law Society: possible

Penalties include reprimand, suspension or disbarment,Lawyers are also required to maintain insurance coverage with Lawyers Professional Indemnity Corporation (LPIC) and to report any claims made against them to LPIC-CONTRACTS-Key Elements of an Enforceable Contract-Must be between two persons who are of legal capacity,Age of majority,Not “legally” incompetent ,Offer by one person,Terms of offer must reflect intent to make a contract if offer is accepted,Offer must contain essential elements of a contract,Offer must be communicated to the other party,Offer must not be withdrawn before its acceptance (offer may include a promise not to withdraw for specified time) ,Acceptance by second person,Acceptance must be clear and unqualified acceptance of terms of offer (and not a counter-offer),Acceptance must be communicated to the person making the offer (and if applicable, in the manner specified in the offer),Acceptance must be given prior to withdrawal of offer,Exchange of consideration,Something of value must be,exchanged between parties,Consideration may be anything of value, promise to do something, or promise to refrain from doing something,Consideration does not include a commitment to perform pre-existing duty, or to do something performed in past,Adequacy of consideration generally not relevant, Circumstances Affecting Enforceability-Fraudulent misrepresentation: statement made knowingly with intent to defraud, and relied on by the other party to his/her detriment,Innocent misrepresentation: same elements as for fraudulent misrepresentation but without intent to deceive,Duress: conduct that deprives a person of free will,Mistake: mistake as to material elements of agreement (but mistake by one party not sufficient to void contract unless other party knew or should have known of mistake),Unconscionability: person in superior position takes advantage of person in vulnerable position (but high burden of proof required),Illegal contract: court will not enforce a contract to perform an illegal act-Different Ways of Entering into a Contract- A “written” document signed by the parties,Oral contract (i.e., made through a verbal exchange of promises),Any oral contract may be subject to ,challenge due to difficulty in proving (i) intention to form a contract and (ii) the terms of the contract,On-line -In Ontario, Electronic Commerce Act 2000, S.O. 2000, c 17 applies,Contract by means of conduct-Party receiving an offer may accept offer by doing the act set out in the offer (Example: use of web site may constitute acceptance of Terms of Use of that site),Electronic Commerce Act 2000, S.O. 2000, c 17 applies- Any contract not invalid by reason of being in electronic form,Any requirement to provide information is satisfied for information provided in electronic form, if it is accessible for future reference and is capable of being retained by recipient,Electronic information may be provided by e-mail,requirement for a document to be signed is satisfied by an electronic signature (electronic information created by a person for the purpose of signing a document and that accompanies the document)-Requirements for an internet CONTRACT MADE WITH A CONSUMER- Certain information must be disclosed to consumer,Consumer must be given opportunity to accept or decline agreement and to correct errors,Information must be accessible and given in a manner to ensure access, and consumer must be able to retain and print

copy,Consumer must be given copy of agreement,Consumer must be given opportunity to cancel agreements(Consumer Protection Act, 2002, SO 2002,)- Requirements for an

internet CONTRACT MADE WITH A CONSUMER- Some types of contracts must be in writing-Requirements may include that the contract be “in writing”, be “signed” by the parties, and be made “under seal”,Statute of Frauds (R.S.O. 1990, Chapter S.19)Example: Contract for the purchase and sale of real estate ,few Brunswick case found that exchange of e-mails relating to proposed sale of condo was not sufficient to create a binding contract because parties did not intend to be legally bound through exchange of e-mails (Druet v. Girouard, 2012 N.B.C.A. 40),Consumer Protection Act, 2002 (S.O. 2002, Chapter 30, Schedule A)-Special Issues for Certain Types of Contracts-. Differences between “contract” and Letter of Intent (“LOI”),Parties in initial stages of negotiations may enter into LOI prior to entering into “formal” contract,Question is whether parties intend for terms of LOI to be binding (in whole or in part) prior to execution of formal contract,Courts have sometimes found LOI to be binding if it contains essential terms and parties conduct themselves as if it were binding,Some terms of an LOI may be binding, while other terms may not be binding-Remedies for Breach of Contract- Purpose of remedies for contract breach is to put innocent party in same position as if breach had not occurred,Principal remedy is the right to receive damages (i.e., to recover an amount corresponding to loss that is incurred),Innocent party has duty to mitigate (i.e., take reasonable steps to limit losses arising from breach),Innocent party may also be entitled in some circumstances to injunction (to prevent continued breach) or an order for specific performance (an order requiring breaching party to perform obligations),Common

Provisions-Term,Termination,Compensation, payment and taxes,Governing law,Forum selection,Dispute resolution ,Non-disclosure,Force majeure, Warranties,Exclusion of

warranties,Limitations and exclusions of liability,Indemnities,Contractual limitation periods,Intellectual property,First party’s,Other party’s BUSINESS STRUCTURES-Types of Legal Entities-Sole Proprietorship-Defining characteristics-A business with a single owner:he owner is fully responsible for all of the obligations of the business (i.e. creditors may claim against both the business’ assets and the owner’s personal assets),Legal hurdles (Ontario)-Need to register the business’ name,Need to obtain a Business Number-Pros-Easy to set up,Inexpensive to set up,Can be formed with minimal start-up capital,Owner controls business,Owner receives all profits,If owner has other personal income, business losses may be deducted from it-Cons-Unlimited personal liability,Business may not be able to operate if owner is absent or unavailable,Not attractive for investors,Profits are personal income, means personal rather than corporate tax rates-Registering a business name (Ontario) -Visit Service Ontario web site (http://www.serviceontario.ca/),Find the section of the site for businesses-There are a variety of name searches,Detailed Business Names Report,Certified Detailed Business Names Report,Statement of No Match Found,Certificate of Non-Registration,NUANS search --Registering for a Business Number -Visit Canada Revenue Agency web site for businesses to find information on Business Numbers and how to register for them (http://www.cra-arc.gc.ca/tx/bsnss/menu-eng.html),Business Number covers the following program accounts,Corporation income tax,GST/HST,Payroll Import/Export--Partnerships-Defining characteristics-Persons carrying on business in common,Not incorporated,Partners are responsible for the obligations of the partnership,In Ontario, the Partnerships Act (R.S.O. 1990, Chapter P.5) applies,Legal hurdles (Ontario)-While not required, it is best to have a partnership agreement,Need to obtain a Business Number ,Need to register the business’ name-Pros-Easy to set up,Sharing of start-up costs,Equal control over business,Equal share in profits,If a partner has other personal income, business losses may be deducted from it-Cons-Unlimited liability ,Potential for conflict between partners,Any business decision made by a partner is enforceable against the other partners-Partnership agreements-Why?,Protection for the partner,Reduction of conflicts between partners,Typically, a partnership agreement will set out: ,The amount of capital to be contributed from each partner,How profits and losses will be shared,A scheme for draws,One or more decision-making processes,What happens when a partner leaves, retires or dies,What must happen before a partner can be admitted or forced out-Limited Partnerships-Defining characteristics-Has two types of partners,General like

being a partner in a traditional partnership,Limited-Contributes capital,Does not participate in management,Has limited liability for the obligations of the partnership,In Ontario, the Limited Partnerships Act (R.S.O. 1990, Chapter L.16)-Legal hurdles (Ontario)-A partnership agreement,A declaration must be filed in accordance with section 3(1) of the Limited Partnerships Act (R.S.O. 1990, Chapter L.16),Need to obtain a Business Number ,Need to register the business’ name-Pros-Similar to partnership for general partners,except for the added ability to attract capital from limited partners without giving up management control,bility of limited partners to limit their personal liability,Cons-Unlimited liability for general partners ,Potential for conflict between partners ,Some restrictions on the authority of general partners (for example, section 8 of the Limited Partnerships Act (R.S.O. 1990, Chapter L.16)-Incorporation- Defining characteristics-A business that is incorporated is a “legal person” distinct from its shareholders,May be named or numbered,For Ontario corporations, the Business Corporations Act (R.S.O. 1990, Chapter B.16) applies,For federal corporations, the Canada Business Corporations Act (R.S.C., 1985, c. C-44),Legal hurdles (Ontario),Incorporation,Named corporations, need to register the business’ name,Need to obtain a Business Number-Pros-separate legal person,Limited liability,Shares are transferable,Structure is appealing to investors,Corporate tax rates,Cons-Initial set-up is more complicated and costly than it is for a partnership or sole proprietorship,Increased record keeping obligations,Annual filings,Residency restrictions on directors,Potential for shareholders disputes-Requirements for directors (Ontario)-Be an individual,Over 18,Legally competent,Not a bankrupt,Not required to hold shares unless the Articles state otherwise,At least one director must be a “resident Canadian” and if there are more than three directors least 25 per cent of the directors must be resident Canadians unless it is “non-resident corporation”,(Section 118 of the Ontario Business Corporations Act (R.S.O. 1990, Chapter B.16))-Requirements for shareholders meetings (Ontario)-PART VII of the Ontario Business Corporations Act (R.S.O. 1990, Chapter B.16) sets out the provisions relating to shareholders including the following section relating to shareholder meetings,Section 93 – the location of meetings,Section 94 – the frequency of meetings,Section 100 – the list of shareholders,Section 101 – quorum ,Section 102 – voting rights,Section 103 – manner of voting,Section 104 – resolution in lieu of meeting-PMI CODE OF CONDUCT- CHPT – VISION AND APPLICABILITY-“This Code of Ethics and Professional Conduct describes the expectations that we have of ourselves and our fellow practitioners in the global project management community …”,“… this Code will assist us in making wise decisions, particularly when faced with difficult situations …”CHPT 2 – RESPONSIBILITY-2.2.3“We fulfill the commitments that we undertake – we do what we say we will do.”,2.3.1 “We inform ourselves and uphold the policies, rules, regulations and laws that govern our work, professional, and volunteer activities.”,2.3.2 “We report unethical or illegal conduct to appropriate management and, if necessary, to those affected by the conduct.”,CHPT 3 – RESPECT-3.3.1 “We negotiate in good faith.”,3.3.4“We respect the property rights of others.” ,CHPT 4 – FAIRNESS-4.2.1 “We demonstrate transparency in our decision-making process.” ,4.3.1 “We proactively and fully disclose any real or potential conflicts of interest to the appropriate stakeholders.”,4.3. “We do not discriminate against others based on, but not limited to, gender, race, age, religion, disability, nationality, or sexual orientation.” ,CHPT 5 – HONESTY-5.2.4 “We make commitments and promises, implied or explicit, in good faith.”,5.3.1 “We do not engage in or condone behavior that is designed to deceive others, including but not limited to, making misleading or false statements, stating half-truths, providing information out of context or withholding information that, if known, would render our statements as misleading or incomplete.” Types of Agreements-NON-DISCLOSURE AGREEMENTS-NAME- As a stand-alone agreement, non-disclosure agreementsh,ave many names,Non-disclosure Agreement,Confidentiality Agreement,Confidential Disclosure Agreement,Agreement Regarding Confidentiality Obligations,sUsed to protect confidential proprietary information and personal Information- Types- Two types of non-disclosure agreements-Mutual agreement:-Each party undertakes to protect the other party’s confidential information,Appropriate where each party is disclosing information to the other (e.g., to determine whether to enter into a joint venture or partnership),Unilateral agreement-Only one party undertakes to protect the other party’s confidential information,Appropriate as part of employment agreement, or where one company is considering whether to invest in, or to acquire, another company ,Defining “Confidential Information” - A general approach-Will define confidential information as “any information that a reasonable person would consider to be confidential”,Is often useful when the parties do not know in advance what may be disclosed,A focused approach-Will set out a listing of types of information that the parties consider to be confidential,May be used when the parties know in advance what will be disclosed, but leads to a risk of missing something,Preferable course of action is often to combine the two approaches-Common Exceptions to the Definition of “Confidential Information”: Information or materials that:Are placed in the public domain by the disclosing party ,Are, or at any time become, generally available to the public other than by a breach by some person of any confidentiality obligations,At the time when disclosed, are known to the other party free of any restrictions ,Are independently developed by the recipient,The exceptions should not extend to personal information,Purpose- Common Purposes-Evaluating whether or not to enter into a business relationship and negotiating an agreement to govern that relationship,Fulfilling one’s obligations and exercising one’s rights with respect to a certain agreement,Conducting due diligence with respect to a certain transaction,Agreement will prohibit the receiving party from using or disclosing the other party’s Confidential Information except for the purposes specified in Agreement-Basic Obligations- There can be a variety of obligations depending on how specific the parties wish to be, The basic obligations:Not disclose the information to third partiesUse the information only for the specified purposes,Protect Confidential Information to the same extent that one protects one’s own similar information and in any event, use a “reasonable degree of care”A,Aditional Obligations -Other types of obligations to be met by receiving party,Disclose only to employees (possibly subcontractors), and to other persons only as specified in agreement, where necessary to allow use of information for the specified purposes,Require any recipients to agree to keep it confidential,Not remove any confidentiality, copyright or other proprietary rights notices ,Upon demand, inform the disclosing party of the location of its Confidential Information and measures being taken to safeguard it,Notify the disclosing party upon becoming aware of any unauthorized disclosure or use of its Confidential Information and make a commercially reasonable effort to minimize the effect of any such use or disclosure-Obligations On Termination- Common to require the recipient to “return or destroy” the other party’s Confidential Information, There may also be an obligation to certify that all of the other party’s Confidential Information has been returned or destroyed, This is an older approach that does not work all that well when computers are involved For example, is it realistic to delete all the back-ups of an email system or go through them to remove the other party’s Confidential Information?, Can be addressed with an exception whereby obligation to return or destroy is subject to a reasonableness or feasibility requirement, There may also be an exception that allows a party to keep information that it is required by law to keep,Service Agreements – Two Categories – Category #1- Services involving creation of new work product-Software development and customization,Maintenance/support services,Web site development,IT training,Data conversion,Examples of new work product resulting from provision of services,Software code,New software releases/patches,New web site content,Training materials, Category #2 Services involving access to IT infrastructure:Network access services,Web site/database hosting services,Cloud computing services,Under this category of agreement, customer rather than supplier is generally responsible for creation or development of content,Supplier’s obligations relating to content will generally be restricted to use of content only for specified purposes, and safeguards to protect information-Service Agreements – Two Possible Structures – Structure #1- àSimple services agreement with all terms set out in one document, Entire agreement is executed prior to start of project,Agreement (with attached Schedules) will include all legal terms and conditions and will cover all products and services to be pr000ovided by supplier,Appropriate structure for well-defined project where scope of work and deliverables can be identified up-front Structure #2- Master Agreement/Schedules/Statements of Work (SOWs):Master Agreement sets out basic legal terms and conditions governing relationship between ,parties,Schedules set out terms dealing with key business processes,Statements of Work set out terms for discrete set of services or discrete part of project,Structure allows for work to be divided into phases to be carried out over extended period of time,,Term,Termination,Compensation, payment and taxes,Governing law,Forum selection,Dispute resolution,Non-disclosure,Warranties-Exclusion of warranties,Limitations and exclusions of liability,Indemnities,Contractual limitation periods,Intellectual property,First party’s,Other party’s,Schedules forming part of Master Agreement will generally set out terms governing key business processes:,Change management,Project governance,Dispute

resolution,Incident/problem management. SOWs will set out key business terms governing discrete portions of the project or set of services:Description of services and work

product,Requirements/specifications,Prices,Resources to be provided,Start date/term,Acceptance criteria,Milestones triggering payment obligations, Services Agreements –

Two Possible Structures- Advantages of first type of structure-All terms settled before project begins,Supplier has no right to stop work before services are

completed,Advantages of second type of structure-Allows parties to divide work into discrete parts,Allows customer to proceed with subsequent phases only if earlier phases are successful,Allows parties to develop nature and scope of project in its early stages and to use that information in negotiating SOWs for later phases .Various Types of it service agreements- software development agreements- What is it: Agreement to provide for the creation of new software code/modification of existing code,Basic objectives:Customer’s key objective: obtain new/customized code that will meet identified business/technical requirements,Supplier’s key objective: to be paid for work performed in developing new/customized code,Key Concern: Description of business/technical requirements,Description of work phases:Requirements phase: Development of high-level business/technical requirements,“Design” phase: development of detailed design (including more detailed technical requirements/specifications),“Build” phase: preparation of software code/technical documentation,Verification/QA testing: confirmation that software code/documentation meet all requirements/specifications,Roll-out/implementation: implementing the code in production environment (may involve multiple sites/systems),Ongoing operation/maintenance: ensuring software continues to meet technical requirements and performance standards, and making periodic updates/revisions Intellectual property rights:Who owns any new/customized code,What if developer uses third party/open source components?,Regardless of ownership, what is the scope of each party’s rights?,Pricing/payment terms:Will service provider be paid based on work performed (i.e., on a time and materials basis), based on expected outputs (i.e., as work product is accepted) or based on some combination (e.g., as work is performed, but subject to achievement of milestones)?,1. Software Development Agreements-– Two Approaches::Waterfall Approach-Entire scope of work set out in advance,All phases for development work identified: completion of one phase results in immediate commencement of next phase,Budget for all work identified in advance: price changes should be necessary only in case of scope change,When “waterfall” approach is appropriate:Requirements well-defined in advance,Software being developed is similar to previously developed software,Technology is mature: outcomes are predictable,Drawbacks of “waterfall” approach,Does not reflect complexity,May not lead to early resolution of issues,Does not reflect need for customer input,Agile Approach-Underlying principle is that successful software development should reflect ongoing interaction between supplier and customer,Interactions between supplier and customer would include regular testing of code and inputting of changes to reflect customer feedback,Project should allow for regular status meetings and exchange of communications,Project should allow for obtaining input from other stakeholders (e.g., user groups),Project is consistent with MSA/SOW contract structure (i.e., later SOWs will be finalized based on outcome of earlier work, but can be made to work with simpler contract structure),Key Advantages/Drawbacks of Agile Approach-Advantages:Anticipates periodic updates/changes to requirements,Allows for early identification of problems (through early customer feedback),Allows for high level of cooperation/coordination between customer and supplier,Drawbacks:May be difficult to establish fixed budget up-front,May be difficult to predict outcome (i.e., success or failure of project in its entirety),May result in project delays (because of ongoing changes in project scope) 2. Hosting Agreements-What is it: Agreement whereby service provider provides hosting services for content (e.g., applications and data),Some common types of hosting service agreements,Provision of colocation space for customer’s equipment,Provision of facility and servers used to host data for customer,Provision of managed services (may include detailed services relating to content management, monitoring, reporting),Customer’s Perspective:Description of hosting environment (e.g., environmental controls, power supplies, including back-up and security controls),Service level commitments (e.g., availability of service, monitoring of service, obligation to restore service),Provisions for protection of confidential information,Data back-ups (frequency and scope; off-site storage arrangements),Business continuity and disaster recovery,Customer’s rights to access data centre and to review/audit supplier’s compliance with its obligations,Rights to return of content upon termination,– Supplier’s Perspective:Right of supplier to change/update its IT infrastructure or to change terms of service offerings (i.e., right to make same changes for all customers),Whether service level commitments can be achieved and whether remedies granted to customers are reasonable,Whether customers have right to access service provider’s confidential information or premises,Requiring customers to abide by service provider’s acceptable use policy (and right of supplier to change policy from time to time),Obligations on termination (e.g., obligation to return data and to provide transition services),Preserving rights to intellectual property,Reasonable limits on supplier’s liability upon any failure of services

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