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In today’s economic climate, with large-scale vendors swallowing increasing shares of the customer marketplace, such vendors may be emboldened to push for contractual exclusivity provisions in negotiations with customers; that is, a requirement that in the future, the customer purchase from the vendor exclusively any additional amounts of services of the type being provided by vendor under the current arrangement. Customers typically balk at such exclusivity provisions, seeking more flexibility for themselves in future dealings. The following clause is drafted to strike a balance between the vendor’s desire to lock in future business and the customer’s desire to remain flexible. ***SAMPLE CLAUSE*** Customer shall use good faith efforts to allow Vendor to bid to provide additional amounts of services of the type currently being provided by Vendor under this Agreement, where Customer is giving third parties the right to bid to provide such services for Customer; provided, however, that Customer shall have no obligation to award such additional amounts of services to Vendor. John A. Gliedman is a senior associate in the New York office of Brown Raysman Millstein Felder & Steiner LLP www.brownraysman.com . His e-mail address is [email protected] . To subscribe to the newsletter “e-commerce Law & Strategy,” click here .

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