Commercial Agreements (M&A Due Diligence)

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Finds the definition of affiliate - the entities that will be considered affiliates of the contracting parties and whose actions or circumstances may affect some of the terms of the agreement.

“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.

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Finds provisions dealing with rights and formalities of assignment of the agreement. Works best on commercial and corporate agreements. Not recommended for use on Facility agreements or Leases.

This Agreement and the license granted hereunder may not be assigned, sublicensed or otherwise transferred by Licensee without the prior written consent of Licensor.

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Finds provisions that trigger new rights or obligations in the event of a change in ownership in a party.

Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if there is a change of control of the other party.

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Finds definitions of “Control” & “Change of Control” in the context of mergers/acquisitions. 

Change of control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.

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Extract 4 only

Finds the definition of "confidential information".

“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. For avoidance of doubt, your Confidential Information includes Your Content; our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Purchase Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.

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Finds provisions dealing with the definition of confidential information, rights, obligations, and specific infringement. 

Confidentiality 12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party's lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body. 12.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this agreement. 12.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement. 12.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party. 12.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's Confidential Information. 12.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer. 12.7 This clause 12 shall survive termination of this agreement, however arising.

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Finds the dispute resolution process and procedure, and the use of any dispute resolution bodies.

Dispute Resolution. Customer’s satisfaction is an important objective to SailPoint in performing its obligations under this SaaS Agreement. Except with respect to intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of this SaaS Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within 15 days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it.

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Finds the definition of a force majeure event, as well as provisions on new rights or obligations triggered by events outside the parties' reasonable control.

Neither party will be liable for failure to timely perform under this Agreement to the extent that is performance is delayed by a “Force Majeure” event to the extent caused by any of the following events, provided that they are beyond the party’s reasonable control, without the party’s fault or negligence and could have not been avoided by the party’s use of due care: acts of God including hurricanes, tornadoes, earthquakes and floods; acts of terrorism; civil unrest; interference by civil or military authority, including war and embargoes; fires; epidemics; and labour strikes (other than labour strikes by the work force of the delayed party). The party claiming force majeure has the burden of establishing that a Force Majeure event has delayed performance and shall use commercially reasonable efforts to minimize the delay. The party claiming Force Majeure shall provide the other party with written notice of the Force Majeure event, including the cause of delay, the estimated time of delay and the actions taken or planned to avoid or minimize the impact of delay. If the Supplier claims a Force Majeure event that delays its performance by more than fifteen (15) calendar days, Pentamaster may cancel any further performance or terminate this Agreement with no liability or agree to extend the time of performance in writing.

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Finds the whole clause pertaining to the governing law of the agreement.

This Agreement shall be governed by and construed in accordance with the laws of Malaysia.

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Position 2 in the Governing law chain

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Finds the specific name of the governing law of the agreement.

Malaysia

This Agreement shall be governed by and construed in accordance with the laws of Malaysia.

Position 1 in the Governing law chain

Extract 4 only

Finds the Commercial Agreement's initial term.

three (3) years

The term of this Agreement is for a period of three (3) years from the Effective Date (“Initial Term”).

Position 1 in the Initial term chain

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Finds the initial term of the agreement. 

The term of this Agreement is for a period of three (3) years from the Effective Date (“Initial Term”).

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Position 2 in the Initial term chain

Finds provisions that obligate a party to obtain insurance, and the types of insurance to obtain.

8. INSURANCE. The Contractor shall secure and maintain the following types and amounts of insurance. The insurance shall be evidenced by a certificate of insurance executed by the Contractor’s insurer and sent to the Notice address. Coverage must be written on an occurrence basis by companies authorized and admitted to do business in the State of Texas and rated A- VII or better: Commercial General Liability Insurance for bodily injury and property damage, including contractual liability, with a minimum limit of $1,000,000 per occurrence, $2,000,000 products/completed operations aggregate, $2,000,000 annual aggregate; $50,000 Fire Damage and $10,000 Medical Payments. Workers' Compensation (if applicable) for all contractors, lessees, and vendors with statutory limits. Employer’s liability is also required with minimum limits of $500,000 Each Accident/$500,000 Disease-Policy/$500,000 Disease-Each Employee. Non-subscribers may be required to provide proof of financial assurance. Self-Insured entities may be required to provide a copy of their Certificate of Authority to Self-Insure as provided by the Texas Department of Insurance, Division of Workers’ Compensation. Comprehensive Automobile Liability (if applicable) covering owned, hired, and non- owned vehicles, with a combined bodily injury (including death) and property damage minimum limit of $1,000,000 per occurrence. No aggregate shall be permitted for this type of coverage. Such insurance is to include coverage for loading and unloading hazards. The required Commercial General Liability, Commercial Automobile, and Employers Liability limits may be accomplished through a combination of primary and excess or umbrella liability policies written on a follow-form basis.

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Extract 4 only

Finds the amount that constitutes the maximum liability of a defaulting party, as commonly found within the Limitation of Liability clause.

1000000 £

Other than under Clause 8.5, neither Party's liability to the other Party under this Agreement (including any indemnity) shall exceed an amount equal to £1,000,000 (one million pounds sterling) in the aggregate for each consecutive 24 (twenty four) month period during the Term, beginning on the Effective Date.

Position 1 in the Liability cap chain

Extract 4 only

Finds the time limitation on the value of the contract that constitutes the maximum liabilty of a defaulting party, as commonly found within the Limitation of Liability clause.

24 (twenty four) month 

Other than under Clause 8.5, neither Party's liability to the other Party under this Agreement (including any indemnity) shall exceed an amount equal to £1,000,000 (one million pounds sterling) in the aggregate for each consecutive 24 (twenty four) month period during the Term, beginning on the Effective Date.

Position 2 in the Liability cap chain

Extract 4 only

Finds the percentage of the value of the contract  that constitutes the maximum liabilty of a defaulting party, as commonly found within the Limitation of Liability clause.

150%

Subject to Clause 11.1 and without prejudice to Clause 11.2, each Party's maximum aggregate liability under or in connection with this Agreement or its subject matter will not exceed %150 of the value of the contract.

Position 3 in the Liability cap chain

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Finds the maximum amount (usually a specific value or percentage of the value of the contract) that a defaulting party will be liable to pay upon breaching the liabilities covered by the cap.

Other than under Clause 8.5, neither Party's liability to the other Party under this Agreement (including any indemnity) shall exceed an amount equal to £1,000,000 (one million pounds sterling) in the aggregate for each consecutive 24 (twenty four) month period during the Term, beginning on the Effective Date.

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Position 4 in the Liability cap chain

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Finds the whole limitation of liability clause, which usually covers types of liability included and excluded, caps, time-frames, and de minimis values.

Neither Party shall be liable to the other for any consequential or indirect losses, including any loss of profits, revenues, business, and/or anticipated savings, whether or not in the contemplation of the Parties at the time of entering into this Agreement unless expressly set out in this Agreement. 8.4 Neither Party limits its liability for death or personal injury caused by that Party's negligence or wilful default or for fraud. 8.5 Other than under Clause 8.5, neither Party's liability to the other Party under this Agreement (including any indemnity) shall exceed an amount equal to £1,000,000 (one million pounds sterling) in the aggregate for each consecutive 24 (twenty four) month period during the Term, beginning on the Effective Date.

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Finds provisions on how general notices should be served upon a party and permissible forms of communication.

Notices 23.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement. 23.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

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Extract 4 only

Finds the specific definition, name and company number of the parties to the commercial agreement, from within the main party clause. 

Name: Downtown Emergency Medical Agency | Definition: "Covered Entity" Address: | Number: 

Name: Downtown Age Trend, Inc | Definition: "Business Associate” Address: | Number: 

by and between, Downtown Emergency Medical Agency (the "Covered Entity”) and Age Trend, Inc. (the "Business Associate”)

Position 1 in the Parties chain

Extract 4 only

Finds and extracts each piece of information for a single party from a full party clause. The party information will be arranged on the review form in the order of (1) party name (2) party definition, (3) party number (4) party address separated by the | character. 

Name: Downtown Emergency Medical Agency | Definition: "Covered Entity" Address: | Number: 

Name: Downtown Age Trend, Inc | Definition: "Business Associate” Address: | Number: 

by and between, Downtown Emergency Medical Agency (the "Covered Entity”) and Age Trend, Inc. (the "Business Associate”)

Position 2 in the Parties chain

Extract 4 only

Finds currency amounts from within the price clause.

150.00 $

LICENSEE shall pay to LICENSOR a fee of One Hundred Fifty Dollars ($150.00) (the "License Fee") during the term of the License.

Position 1 in the Price chain

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Finds the price clause in its entirety and incudes all provisions relating to pricing, including total value, exclusions, tax treatment, and fluctuations.

Product Prices, Payments and Others 8 8.1 Product Prices 8.1.1 Production Prices (a) The prices for Premium Products and domestic products for neighbouring courtries will be actual cost of the supplier plus 15% margin on those products. 8.1.2 Invoicing and Payment (a) In relation to sale of the Products by the Distributor in the International Territory, the Supplier shall sell the Products to the Distributor at a price in pursuant to clause no 8.1.1. (b) Invoicing will be done against FORM H of CST Rules without charging any VAT or CST. (c) Invoicing for products to be sold in domestic market will be done at the respective state office of the distributor where goods are to be delivered and CST cost will be borne by the supplier. (d) Within 90 (ninety) Business Days from the Delivery Date, or the date of delivery of the replacement Products in terms of Clause 6.2.1, as the case may be, the Distributor shall, subject to the adjustments / deductions (if any) made pursuant to Clauses 5.4, 6.2 and 6.3, pay invoices (raised in terms of Clause 5.7) in full to the designated bank account of the Supplier. (e) The Distributor shall have the sole and exclusive right and entitlement to determine the price at which Premium Products will be sold by it. (f) On receipt of confirmation of goods' readiness for dispatch, payment will be released and goods will be dispat ched on the date of receipt of payment.

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Position 2 in the Price chain

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Finds the declaration within the signature block where the parties declare the contract has been executed and may identify the contract's execution date. 

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed as of the Effective Date.

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Extract 4 only

Finds the clause that sets out the period after which certain rights and obligations that will remain applicable to the parties after termination or expiration of the agreement. 

Sections 1, 6.2.2, 7, 8.2, and 9 through 12 shall survive termination or expiration of this Agreement for any reason. All other rights and obligations of the Parties under this Agreement shall expire upon termination or expiration of this Agreement, except that all payment obligations accrued hereunder prior to termination or expiration shall survive such termination or expiration

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Finds provisions on how the contract ends, and procedure that must be followed. Does not find Effects of Termination. Works best on commercial and corporate agreements. Not recommended for use on Facility agreements or Leases.

Termination. 6.2.1 By Either Party. This Agreement may be terminated by either Party prior to the expiration of the Term, upon delivery of written notice of termination to the other Party, as follows: a. if the other Party fails to perform or observe any material term or condition in this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non- breaching Party;

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Extract 4 only

Finds the specific number of days notice that the counterparty must give when serving notice to terminate. This is usually from within the Term or Termination clause of the agreement. 

six (6) months

unless either party provides six (6) months prior written notice to the other party of such party's desire to allow this Agreement to expire.

Position 1 in the Termination notice period chain

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Finds the notice period a party must give to terminate the agreement.

unless either party provides six (6) months prior written notice to the other party of such party's desire to allow this Agreement to expire.

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Position 2 in the Termination notice period chain

Extract 4 only

Finds the general boilerplate provision that sets out if any third party is considered to be a beneficiary under the agreement. 

No Third-Party Beneficiaries. Except with respect to Indemnified Parties under Section 9, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement

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