The allocation of liabilities often follows leverage and the allocation of liabilities to major acquisition documents. Careful consideration should be given to whether and to what extent the seller is responsible for the failures of its own third-party suppliers. It is common for an TSA to include a waiver of consequential damages (i.e., consequential damages, penalties, depreciation, etc.) and includes individual and aggregate limits on direct damages. Consider reasonable exclusions from these waivers and caps, such as. B breach of confidentiality, gross negligence, wilful misconduct, breach and misappropriation of funds. A Transition Service Contract (TSA), when used wisely, offers significant benefits, . B such as faster execution, smoother transition, lower transition costs, better end-state solutions, and clean separation. However, divestiture that makes TSA wrong can take much longer than expected. A transitional services agreement (TSA) is entered into between a buyer and a seller and provides for the seller to provide infrastructure support such as accounting, IT and human resources at the end of the transaction. TSA is common in situations where the buyer does not have the management or systems to absorb the acquisition, and the seller can offer it for a fee. Practical tips on using Transition Service Agreements (ASAs) to achieve a quick and clean separation.
Transitional provisions on services can be extremely difficult to manage if they are not properly defined. Typically, poorly worded ASD leads to disputes between buyer and seller, focusing on the extent of the services to be provided. Often, the seller has to rely on its own suppliers and service providers to provide services to the business after closing. Determine whether the seller has sufficient rights under its existing upstream agreements and licenses to provide the requested services itself, or whether third-party agreements and licenses need to be entered into or amended with the seller`s vendors and service providers. Consider the criticality and complexity of the services requested, as well as the cost and timing of entering into or amending agreements with third parties (bearing in mind that third parties may have reasonable leverage and little incentive to provide short-term or transitional services). The intricacies of computer science are too numerous to discuss here. If I had to prioritize two areas, I would say; Infrastructure and ERP. These elements are the most complex and therefore difficult to revise without interruption.
A written migration plan agreed upon prior to completion can save hundreds of thousands of dollars (or even millions) in actual and incidental costs. Service levels should be defined in the TSA or supporting documents with the right level of detail so that the parties can understand exactly how the requested services are to be provided, but without giving the seller contractual “exits.” Avoid complying with “reasonable,” “commercially reasonable,” “best commercial efforts,” and similar performance standards that could allow seller to technically operate in accordance with the TSA, but without actually providing the requested services in a manner that provides buyer with the benefit of their agreement. .