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MODEL FORMS

Inquiries about where to obtain model forms and sample agreements are one of the most common requests for information received by those who work in the technology transfer and intellectual property space. As with so many things, the advent of the Internet has made it possible to locate numerous sample agreements on virtually every topic imaginable. To be sure, it is also not difficult to find documents that purport to be model forms. This being the case, it is absolutely necessary to be mindful of the fact that there is no such thing as a model form that can be relied upon without thought, care or modification.

Forms and agreements are contracts, and the very essence of a contract is the memorialization of an agreement between two or more parties. There is no magic substance to a contract, although there are certainly common clauses and considerations that should addressed in drafting any agreement. The point here is that each and every contract negotiation is unique and something that purports to be a model or exemplary form cannot and should not be used without considering whether it is truly appropriate for the situation at hand.

The proper way to use model forms and sample agreements it to first determine what it is that the parties wish to accomplish. After this is determined then a search for similar documents and forms should uncover samples, which can be used as a useful guide. Some of the documents located may be rather inadequate, and some may seem like overkill based on your needs. Cutting, pasting and modifying clause terms to create a customized contract is the preferred way to proceed, at least initially. Simply using preexisting contracts as is, however, will likely lead to the formation of an inadequate, and perhaps disastrous, agreement.

Notwithstanding what has already been discussed, there is nothing inherently wrong with using sample agreements as a guide. There is need to reinvent the wheel if you have found the perfect language for your needs in a sample agreement. The key thing to remember, however, is that sample agreements should never be used as is. If you are going to look to sample agreements for help you will need to cut and paste clauses you like from a variety of contracts so as to create a contract that makes sense for your unique situation. After going through this cut and paste exercise what you have developed is a template for your agreement. At this point you will need to begin the editing phase to tailor each clause as appropriate. Be sure to check that your interests, desires and unique situation is taken into account.

Frequently those seeking sample agreements will find and unduly rely upon samples created by recognizable and reputable companies. It is critical, however, to always remember that just because Microsoft, Pfizer or some other corporation has used an agreement does not guarantee that the agreement, or any individual clause, is good for all contracts. Every sample agreements should reflect individualized determinations about what is good for the contracting parties. Such determinations could easily have been incorrect with the view of hindsight, so merely relying upon a contract entered into by other parties without independent consideration frequently spells disaster.

Moreover, unmodified sample agreements and clauses found in the contracts of large companies almost certainly do not take into consideration the needs of entrepreneurs, inventors, start-up companies and small businesses. There simply is no substitute for the drafting work necessary to obtain the best fit agreement possible.

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