It can help discussions to agree a brief Memorandum of Understanding with a potential project partner at an early stage. It is very important to make clear which parts of it are non-binding (usually most of it) and which parts of it are binding (such as provisions imposing confidentiality obligations and restricting the use of trade marks).
If early discussions go well, it can then be useful to agree Heads of Terms, setting out the commercial terms of the proposed project in more detail, and in ordinary language. Again, this document should be largely non-binding. Sometimes, Heads of Terms are contained within the Memorandum of Understanding.
Heads of Terms document allow the lawyers to prepare a draft binding agreement quickly and efficiently. For example, a Heads of Terms document might mention the need for financial transparency, and the binding agreement would then go into considerable detail about financial reporting, audit rights and the appointment of auditors, etc.
Heads of Terms can be a useful way of avoiding negotiating big commercial issues at the same time as the detailed wording of legal clauses. This keeps legal costs down and minimises delays.
The binding agreement itself will be a much more detailed document. A lot can happen in the life of an international project, and the agreement needs to set out a clear framework for the successful development of the project. It is a good idea to stipulate that your UK policies and procedures will apply internationally (subject to updating and to limited local variations).
Among other things, the binding agreement should address the UK Bribery Act. Under the Bribery Act, a UK institution could commit a bribery offence if a project partner bribes an overseas official, even if the UK institution had no knowledge of the project partner's actions. The terms of the binding agreement can protect the UK institution in those circumstances.
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Our Education lawyers can offer advice to a variety of investors in education for International Education Projects.
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