Contract WISardry

Contracts are the keys to profits.

Have you ever stressed out over a difficult contract?

Have you ever wasted money in a contract dispute?

Have you felt beaten negotiating with a larger business with a big law firm?

Did you ever discover a law too late?

What do you do?

Hire a Contract Professional like me..

My diverse background permits me to provide a holistic approach — I see the big picture.

I listen carefully to you and promptly provide the answers you need

As a small firm, I listen to you and respond promptly with the answers you need. With my diverse background, I provide a holistic approach — I see the big picture. As former Chief Counsel of a national software company, I negotiated hundreds of contracts with Fortune 500 companies such as IBM, Citibank and the Federal Reserve Bank. I couldn’t push these giant corporations around. I learned how to negotiate!

For example, I recently helped a software client negotiate a million dollar plus licensing agreement with one of the nation’s largest banks. I gradually met each party’s goals and objections, using these techniques! Doesn’t your business deserve this expertise?

See all the services I can provide you  in My General Counsel below.

For more information seeTennessee Business Information

What is my experience?

In private practice since 1980, I spent six years as Chief Counsel and CFO of Software Earnings, Inc. a national software company. There I negotiated hundreds of contracts with Fortune 500 companies such as IBM, Chase and the Federal Reserve Bank. Part of my job was to assure profitable relationships.
THE NEW WAY TO NEGOTIATE

One approach I learned was “win-win negotiating,” advocated by Stephen Covey in The Seven Habits of Highly Effective People, The idea is that both parties can win. To win-win you must understand what the other side wants and fears.

WINNING TECHNIQUES:
-Read between the lines to see goals
-Listen to what they say
-Paraphrase back to them
-Avoid negativity
-Delay emotional exchanges

The Payoff? Your efforts to help your “adversary” changes him to an ally — makes him want to help you. Both get more out of the contract. For additional reading, I suggest The One Minute Negotiator, by Don Hudson.and George Lucas and The Power of Two, by Susan Heitler (Susan also offers online marital counseling at The Power of Marriage)

NUTS & BOLTS OF DRAFTING
My experience and training helps me draft language that is clear and tight and avoids conflicts.

ATTACHMENTS -EXHIBIT A, ETC.
In attachments the parties can flesh out contract terms. The parties can then reuse the contract without rewrit-ing it by substituting new attachments

DEFINITIONS
Definitions define contract terms, so they can be used consistently and clearly throughout the contract.
For example, the parties may trigger payment upon “acceptance” of the product. By defining “Accep-tance” you have an objective standard to avoid dis-agreement:
Acceptance shall occur upon the earlier of: i) cus-tomer’s written acceptance of the product, or (ii) thirty (30) days after the date customer begins using the product.

The “term” is the time span of the agreement. Pin down the term of the agreement and beware of contracts that extend automatically. Watch out for automatic extensions.

PRODUCTS, SERVICES
This provision describes what products or services are being sold or refers to an Attachment that does so.

PRICES, CHARGES & FEES
This provision describes the fees and charges and when they are paid.

DELIVERY & INSTALLATION
This provision specifies when the seller must deliver and install. The Customer may have to prepare for it.

OUT-OF-POCKET EXPENSES
The customer may reimburse the seller for part or all of out of pocket expenses. This is a ripe area for disagreement.

WARRANTIES
Warranty provisions should be quite specific, to avoid disagreement. It should be clear how quickly the Seller must respond and who pays expenses.
A seller is responsible for “implied warranties” under the law, which you can avoid with contract language.

MAINTENANCE
The maintenance provision describes the seller’s main-tenance obligations. It may require that the Customer promptly keep the product running optimally or install updates.

INDEMNIFICATION
Under this provision if one party causes third party claims or damages against the other party to the con-tract, the party at fault must reimburse the party that is sued. If an indemnification provision is too broad, it an be dangerous.Indemnification. Many contracts provide that one party must indemnify the other in some cases. Have an experienced lawyer review these provisions.

LIMITED LIABILITTY
An indemnification provision can put a small company out of business!  I suggest that you find a way to limit liability. How? Carry adequate commercial insurance.  I would limit damages to your insurance limits or to a money back guarantee.

HOW TO DEAL WITH DISPUTES
Many disputes can be resolved by requiring the parties to first designate individuals in each company to resolve disputes, and only then to resort to arbitration. Some companies prefer not to arbitrate. I suggest that each party handle its own costs.

DEFAULT, TERMINATION
If a party breaches a contract, you can avoid the cost of terminating by allowing the offending party to “cure” a breach promptly after notice.
An agreement should likewise state what breaches will allow the other party to terminate.
If a breach leads to termination of the agreement, the agreement should likewise say what each party must do upon termination, what items must be returned, etc.
Survival of provisions. Certain Sections should survive after the Agreement: ends, such as Con-fidentiality and Warranties.

CONFIDENTIALITY
This type of provision requires that each party keep the other party’s information confidential. Some parties even require you to keep the exis-tence of the contract confidential. This provision must be very clear. It must define what is and what is not confidential, for how long it should be confidential, who can receive the information and so on.

RESTRICTIVE COVENANTS
Noncompetition provisions, Nonsolicitation provisions, moonlighting and provisions controlling ownership of employee developments must be drafted carefully or they may not be enforceable.

ADMINISTRATIVE
Assignability. Whether and when the contract can be assigned. I suggest that assigning require prior written consent of the other party, which consent shall not be unreasonably withheld
Governing law. What state law controls.
Entire agreement. This agreement is the only agreement (ignore prior communications).
Notices how to give an official notice to the other party. For example, in writing postage pre-paid, return receipt requested.

SIGNATURES, GUARANTIES
A corporation or limited liability company should sign in its name, by a president or manager or risk loss of liability protection.
Be sure to run guaranties by your lawyer.
Joint and several liability applies to general partners. Take to your lawyer.

About Wis Laughlin

I help clients with tax preparation and IRS representation, estate planning, and complex contracts, including LLC's. As a former IRS tax attorney in their National Office. Law.com picked Wis in 2017 and several prior years as one of the Top Tax and Estate Lawyers in Tennessee. I am your advocate, not your accountant. I don't tell you what you can't do. I show you how to do it.
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