For a commercial contracts lawyer, there are a few things that can be especially disheartening to hear from prospective and existing clients. We’ve put together a list, along with a few tips so you can hopefully avoid ever having to utter any of the following phrases to your lawyer…
1. No, we didn’t write anything down.
As a rule a contract does not have to be in writing for it to be legally binding. However, in the absence of a written contract, if something goes wrong both sides can be left clutching at straws. It then turns to lawyers (and often the courts) to try and sift through the circumstances leading up to the verbal agreement to determine what the ‘terms’ of the verbal contract are. This process involves time, money and can carry with it a great deal of uncertainty. Agreeing key deal points or obligations in letters or emails is better than having no written evidence at all. Better still – put a contract in place, one which clearly sets out your rights and responsibilities. Today’s time and effort just might save you pain and angst tomorrow.
2. Can you make my contract a ‘one-pager’?
This is quite a common request, and one we’ve written about before. We’ve got nothing against brevity; in fact, we always strive to make our contracts short, simple and easy to understand. That is an entirely different proposition to setting an arbitrary page, word or kilogram limit. We can absolutely work with your processes and create a contract for you that can’t be seen from space. Just don’t let document design absolutely dictate your requirements. If you do, chances are you’ll end up with a document low on content and even lower on protection. And also, with micro-fonts (hello, Arial Narrow!).
3. We just copied someone else’s contract / terms and conditions.
This may seem tempting but is not the smartest move on several levels. Firstly – it’s blatant copyright infringement and it will be embarrassing (at the very least) if you get caught. Secondly, the terms you’re coveting might be great for the organisation who they were written for. They might not be so great for you. Apart from obvious contract variables (governing law, for example), the risk profile of an online seller like Amazon is entirely different to that of a tiny online store. The rights you are looking to grant with your App could be wildly different for the SaaS offering whose Ts and Cs you’re filching. Be smart, be bespoke.
4. We sent them our contract and they never signed it, but we went ahead anyway.
So close… and yet so far. Of course it’s better to have sent a client or customer your contract than to have done nothing at all (see point 1). However, if there is a problem then you’d have to demonstrate that they accepted the terms of your (unsigned) contract through their conduct in proceeding with the work/purchase/etc. Problem is, what if they sent you their contract too? What if they provided their purchase terms when they paid you? They might have proposed a last minute change before you delivered your services. You’ve just entered into what lawyers refer to as the ‘battle of the forms’. Save yourself some trouble and get them to sign on the dotted line.
5. I want my contract in plain English.
OK, so we don’t really hate to hear this. We understand you don’t want to scare your customers off with legal jargon; neither do we. As in all things, this one is a question of balance. Using overly legalistic language for nought but its own sake is unfortunately all too common amongst the legal fraternity. However, making appropriate use of recognised legal terms could help you in the event of a dispute, as it allows a lawyer (and, worst case scenario, courts) to better interpret what you intended. Using plain English may be simpler, but don’t abandon all valid legal terminology in the process.
Although most users of your website will not read your terms, this is an important part of your business. Having to argue in court is expensive, so a little investment to avert the risk is a pragmatic approach. This article highlights some of the most common points which your terms should cover so that the risks explained below do not crystallise.
If your business involves sending personal data outside the UK and EEA, you may be aware of the need for a transfer risk assessment (TRA) to demonstrate that you have properly considered and mitigated any associated risks.
When it comes to commercial negotiations, they often don’t turn out the way you had hoped and then there is no going back. Instead of struggling on your own, losing a lot of management time and still not being sure you have got the best deal, let us negotiate for you.
Get it in writing – Commercial Contracts