Contract Negotiations: How to Avoid Negative Reactions in Redlines and Mark-ups
𝗤𝘂𝗶𝗰𝗸 𝗖𝗼𝗻𝘁𝗿𝗮𝗰𝘁 𝗡𝗲𝗴𝗼𝘁𝗶𝗮𝘁𝗶𝗼𝗻 𝗧𝗶𝗽 𝗼𝗳 𝘁𝗵𝗲 𝗗𝗮𝘆: When reacting to a comment or suggested wording by a counterparty that is commenting on your contract, 𝘢𝘷𝘰𝘪𝘥 using negative language like:
“Adding this wording in the Article is incorrect because it has already been covered in Art. 12.”
Instead, try saying:
“Thank you for your comment. I agree with your addition. Please note that we have already covered this in Art. 12.”
Additionally, for important subjects, you can add:
“If you do not agree with this wording, please let me know”; and/or
“Please let me know if you would like to discuss this topic during our next meeting”.
As we know, during contract negotiations, it’s important to maintain a cooperative relationship with the other party. Remember, the counterparty is also just doing their job and you are working together to reach a mutually advantageous outcome.
By using positive language in your reactions to comments, you can help keep negotiations running smoothly and maintain a good relationship with the counterparty.
For a bit more background on The Importance of a Relationship in Negotiations, please see the following article on the Harvard website.
See our original post on this subject on LinkedIn
#ContractNegotiations #HowtoNegotiateBetter #ContractLaw #AMSTLegal #contracts #negotiation #negotiationskills #relationshipbuilding
Legal in the Lead when improving Contract Templates
To improve your contracts, it is no surprise that we recommend Legal to take the lead in creating and implementing contract templates, particularly for critical documents such as loan agreements, general terms & conditions, DPAs (data processing agreements), etc.
Depending on the maturity of an organisation, leadership and commercial teams often overlook the necessity of Legal approval, which leads to inefficiencies and the risks mentioned in the previous articles on this subject. Even though it might be perceived as slowing down processes, it is advised to let Legal take the lead when creating, amending and rolling out your company´s contract templates.
To illustrate this, see two scenario´s that we encounter in practice:
a) Small Businesses and Start-ups: founders or commercial teams in smaller enterprises rely on freely available online templates or self-made documents. While this is an understandable practical approach in the early stages of a company, it is vital to re-evaluate these initial templates in consultation with Legal.
b) Corporates: even in larger organisations with state of the art templates, it is not unusual that commercial and operational teams use their own, unapproved versions tailored for specific products or services. Case study: For example, when advising a company with 120 employees, we encountered 40 different contract templates of the same Sales Contract – one for each product! As the company – understandably – had serious contract efficiency issues, we worked on successfully consolidating this into three contract templates.
Contracting is a highly cross-functional activity (or at least it should be).2 Legal leadership is nothing without involvement from the other departments in a company. How to do this, we will explain in the next tip in the series how to improve your contract templates.
Doesn´t Legal slow down processes?
There is still a common perception that Legal will slow down processes, which is not correct if Legal embraces the possibilities of (i) standardizing and simplifying the contract templates, (ii) working towards the 80/20 Template Ratio and (ii) contract automation. The research on this subject also confirms that – as we have also experienced in practice in many different companies – that it will actually speed up your processes. Lastly, this is also substantiated by the interest in Legal Tech & CLM (Contract Lifecycle Management) tools offered that automate and streamline contract processes during key stages in the contract lifecycle.
To improve contract templates, more work will indeed need to be done at the start of the process to ensure that the standards not only contain legal, but also business requirements. Once the contract templates have been created and includes the input from all teams (see next tip 4), the standardized templates can be used without input from Legal – which will greatly improve the efficiency, scalability and negotiation time for your contracts.
Automation and Empowerment Commercial Team
Once these contract templates are final, these templates can be made available internally and/or externally depending on the type of contract, for example:
online (Terms and Conditions, DPA, SLA (Service Level Agreement)
contract management software (e.g. Customer Agreement, NDA (Non-Disclosure Agreement), Order Forms; and/or
by the commercial teams (Enterprise Customer Contract, Partner Agreements, Master Services Agreement).
It is therefore crucial to have a central repository and/or automate the access to the contract templates to empower the commercial teams to use the contract templates within the agreed framework. Commercial teams need to be enabled to complete and send out contracts (e.g. Enterprise Customer Contracts, NDAs and Partner Agreements) that are made using the template contracts. More on this in point 5 below.
Broadened Scope
Key to this approach is that Legal is not only involved in leading the effort in creating typical contract templates like NDAs, sales or partnerships agreements, but also documents such as Service Level Agreements, Offer Documents and Order Forms. Once these agreements have been agreed by Legal and the rest of the company, they can be used at scale within the agreed framework.
The Role of Legal
Legal should oversee the drafting, implementation and management of these contract templates to ensure accurate and compliant use of the templates across the organization. Once Legal is in the lead of the contract templates and the business is working according to the 80/20 Contract Template – unsurprisingly – it typically first leads to more work for Legal. This is caused by the fact that Legal now has control over all contracts that are sent out by the company. This is why automation and empowerment of other teams is so crucial.
This brings us to the next points that Legal should focus on: (i) involving other departments in the company and (ii) improving the communication and cooperation with other departments, which we will discuss in our next post
NDAs Explained – What You Need to Know (part 1)
NDAs ensure that confidential information is used solely for the specified purpose set out between the parties in a business relationship. In the world of business, where ideas, innovations, financial information and secrets are the keys to success, Non-Disclosure Agreements (NDAs) often play an important role in protecting a company’s confidential information. This article will provide a comprehensive overview of NDAs in the context of Business to Business (B2B) dealings.
What is an NDA?
An NDA, also referred to as a Confidentiality Agreement, is a legally binding contract between two or more parties to protect confidential information which may be shared during the course of their business relationship. More specifically, confidential information is non-public information of a company that could harm the company when it would be shared in public. Usually a list of the Confidential information is included in the NDA, containing for example: trade secrets, know-how, products and technology-related information, discounts, customer lists, sales and financial information, business plans, etc.
Why and when do we need an NDA?
In the B2B context, NDAs can be an essential tool for protecting proprietary knowledge, trade secrets and other confidential data that is important for a company to maintain its competitive advantages. That sensitive information, therefore, should be defined clearly and carefully in NDAs. However, be careful not to define it too narrow to ensure that you have not missed an important category. By using a properly drafted NDA, your company can secure valuable information from competitors or other third parties who may benefit from the disclosure of such information.
Primary objective
The primary objective of an NDA is to ensure the disclosed sensitive information is securely used and handled, preventing its use or disclosure without proper permission and authorization by the disclosing party. An NDA is often signed at the beginning of a business relationship or before entering into a business relationship.
Example
Common example: a technology company is planning to sell and offer specialized software solutions to an enterprise customer. The companies start by discussing how to integrate the software into the customer’s systems to ascertain the price for the integration and the use of the software. For this, the technology company might share insights about their pricing, SLA, policies and software, and the customer, in turn, might explain their challenges and share business plans. While doing so, the companies therefore plan to share documents including non-public, hence confidential information. This is why it is advised that these companies sign an NDA before sharing this confidential information to each other. Such an NDA can be terminated when the parties sign a final customer contract, which should also include confidentiality terms.
How does an NDA protect your confidential information?
Like any other legal contracts, an NDA carries important legal consequences for breach of contract. Depending on the severity of a breach, its consequence can range from lawsuits, financial penalties to – in extreme cases – criminal charges. Breaching an NDA can also harm a party’s reputation, which may lead to other long-lasting consequences to its business, especially in business relationships and industries where trust and confidentiality are crucial.
Claims and lawsuits relating to a breach of an NDA are not common, but it absolutely happens that a company needs to pay out a penalty for breach of confidentiality. We have even advised on this matter a few times in the past.
What type of NDA do you need?
There are various types of NDA that can be used based on the specific circumstances and the needs of the parties involved. Below are the three common types of NDA:
- Unilateral NDA (One-sided NDA): In a unilateral NDA, one party, typically the seller, imposes on the other party the obligation to secure the information and not to disclose or use the information for any purpose other than what is specified in the agreement. In a B2B context, unilateral NDAs are often used between buyers and sellers. For instance, a Biotech company (seller), may employ a unilateral NDA to prevent the buyer from disclosing sensitive information they have gained during the purchase of products or services, such as intellectual property and computer technology. Also common in Public Tenders and for RFI (Request for information) in RFP (Request for Price) situations.
- Mutual NDA (Two-sided or Mutual NDA): A mutual NDA involves two parties, and both parties will be sharing sensitive information with each other and agree that both sides will be bound by confidentiality obligations. Mutual NDAs are frequently used when the parties need to exchange considerable amounts of confidential information during their negotiations or business relationship. Such situations can be Joint Ventures, Vendor Contracts or Mergers and Acquisitions.
- Multilateral NDA (Three or More Parties NDA): A multilateral NDA includes three or more parties, where at least one party shares sensitive information with other parties and enforces confidentiality obligations. This type of NDA streamlines the paperwork and administration for the parties in a sense that the parties do not need to enter several unilateral or bilateral NDAs with one another. In a business relationship involving three parties, where all anticipate disclosing confidential information, a single multilateral NDA can replace the need for three different bilateral NDAs between each pair of parties. Such situations can be Partnerships, Government Contracts (like defense and aerospace contracts) and Consortium Agreements.
Communicate Early: Pre-inform and Notify Team Members
As part 3 of my tips on how to roll-out a new Contract Template as an Expert, the following:
𝗪𝗵𝗮𝘁 𝘄𝗲 𝗵𝗮𝘃𝗲 𝗹𝗲𝗮𝗿𝗻𝗲𝗱 𝗳𝗿𝗼𝗺 𝗽𝗿𝗲𝘃𝗶𝗼𝘂𝘀 𝗽𝗼𝘀𝘁𝘀 𝗶𝗻 𝘁𝗵𝗶𝘀 𝘀𝗲𝗿𝗶𝗲𝘀:
* The top-down approach does not work
* Team members need to know the critical components for the use of the new Contract Templates: the Why, How, When and Benefits
* Create and follow a strategic communication and follow-up plan (the Communication Plan)
* Step 1 Communication Plan: ‘Identify Relevant Users and Teams’
Now, let’s continue to the next step of the Communication Plan:
𝗦𝘁𝗲𝗽 𝟮: 𝗖𝗼𝗺𝗺𝘂𝗻𝗶𝗰𝗮𝘁𝗲 𝗘𝗮𝗿𝗹𝘆: 𝗣𝗿𝗲-𝗶𝗻𝗳𝗼𝗿𝗺 𝗮𝗻𝗱 𝗡𝗼𝘁𝗶𝗳𝘆 𝗧𝗲𝗮𝗺 𝗠𝗲𝗺𝗯𝗲𝗿𝘀
Does the team know that the new Contract Template is final and will be implemented soon?
Before actually sending and rolling out new Contract Templates, create groundwork and buy-in from senior management and each team member to make sure that they will actually use the new Contract Template now it is final.
It is important to provide opportunities to these team members to ask questions, express concerns and offer feedback. In this stage, ask these questions to yourself:
– Are the team members aware that the new Contract Template needs to be used at a certain date?
– Is the new Contract Template clear and does the team (in principle – not everyone will agree from the start) agree and appreciate the new Contract Template?
– Do they know the Why, How, When and Benefits?
𝗧𝗵𝗶𝘀 𝗰𝗮𝗻 𝗯𝗲 𝗮𝗰𝗵𝗶𝗲𝘃𝗲𝗱 𝗶𝗻 𝗮 𝗻𝘂𝗺𝗯𝗲𝗿 𝗼𝗳 𝘄𝗮𝘆𝘀:
* Have honest and open conversations with people that will use the Contract Template every day and with Senior Managers that will lead the relevant teams.
* Send out a pre-announcement e-mail / Slack of the actual intended roll-out date
* Organize meetings to explain the Why, How, When and Benefits of the new Contract Template
* Conduct Training sessions
* Involve key stakeholders in the process like Senior Management and Team Members from all Relevant Departments
* Set expectations and hold people accountable
In summary, by notifying, briefing and pre-informing team members of the upcoming Contract Template, businesses can ensure that everyone is on the same page and that team members are prepared for the upcoming changes. This can help to minimize any confusion or disruptions and increase the likelihood of a successful rollout.
𝘛𝘩𝘪𝘴 𝘪𝘴 𝘱𝘢𝘳𝘵 𝘰𝘧 𝘮𝘺 𝘭𝘢𝘴𝘵 𝘵𝘪𝘱 (10) 𝘰𝘯 𝘩𝘰𝘸 𝘵𝘰 𝘪𝘮𝘱𝘳𝘰𝘷𝘦 𝘺𝘰𝘶𝘳 𝘉𝘶𝘴𝘪𝘯𝘦𝘴𝘴 𝘊𝘰𝘯𝘵𝘳𝘢𝘤𝘵𝘴 𝘣𝘺 𝘤𝘳𝘦𝘢𝘵𝘪𝘯𝘨 𝘨𝘳𝘦𝘢𝘵 𝘊𝘰𝘯𝘵𝘳𝘢𝘤𝘵 𝘛𝘦𝘮𝘱𝘭𝘢𝘵𝘦𝘴. 𝘊𝘩𝘦𝘤𝘬 𝘵𝘩𝘦 𝘸𝘦𝘣𝘴𝘪𝘵𝘦 𝘪𝘯 𝘵𝘩𝘦 𝘤𝘰𝘮𝘮𝘦𝘯𝘵𝘴 𝘵𝘰 𝘳𝘦𝘢𝘥 𝘵𝘩𝘦 𝘰𝘵𝘩𝘦𝘳 𝘵𝘪𝘱𝘴.
Effective communication is critical when introducing a new Contract Template
As part 2 of my tips on how to roll-out a new Contract Template as an Expert, the following:
𝗘𝗳𝗳𝗲𝗰𝘁𝗶𝘃𝗲 𝗰𝗼𝗺𝗺𝘂𝗻𝗶𝗰𝗮𝘁𝗶𝗼𝗻 𝗶𝘀 𝗰𝗿𝗶𝘁𝗶𝗰𝗮𝗹 𝘄𝗵𝗲𝗻 𝗶𝗻𝘁𝗿𝗼𝗱𝘂𝗰𝗶𝗻𝗴 𝗮 𝗻𝗲𝘄 𝗖𝗼𝗻𝘁𝗿𝗮𝗰𝘁 𝗧𝗲𝗺𝗽𝗹𝗮𝘁𝗲.
To ensure effective communication, make a strategic communication and follow-up plan to convince and inform the company’s teams to use the new contract template.
As we have learned, the top-down approach does not work. It is not sufficient to simply send out the new template and expect its adoption.
To ensure success, team members need to know the critical components for the use of the new Contract Templates:
* Why
* How
* When
* Benefits
𝗦𝘁𝗲𝗽 𝟭: 𝗜𝗱𝗲𝗻𝘁𝗶𝗳𝘆 𝗿𝗲𝗹𝗲𝘃𝗮𝗻𝘁 𝘂𝘀𝗲𝗿𝘀 & 𝘁𝗲𝗮𝗺𝘀
Before starting your communication in the company, make a thorough analysis who will use the new template the most and/or who should be informed about the new template.
It is not about just informing the most obvious stakeholders like – for example – the sales managers who will use the new client contract.
In fact, there may be teams that business owners and Legal did not initially realize needed to be informed, like HR, Finance, Compliance, Operations, Product Teams, etc. Once identified, a communication plan can be developed that includes reaching all relevant stakeholders.
In summary, to ensure success in the roll-out of your new Contract Template, communicate your new templates to a wider group than you initially first thought of.
Tip 8: Consistent terms & definitions in your documents
𝐂𝐨𝐧𝐬𝐢𝐬𝐭𝐞𝐧𝐭 𝐭𝐞𝐫𝐦𝐬 & 𝐝𝐞𝐟𝐢𝐧𝐢𝐭𝐢𝐨𝐧𝐬 𝐢𝐧 𝐲𝐨𝐮𝐫 𝐝𝐨𝐜𝐮𝐦𝐞𝐧𝐭𝐬
Make sure that you use the same terms and definitions in your contracts and other important documents. It is also advised to follow the same rule for commercial documents like pitches / offers and even your website.
𝗪𝗵𝘆?
1. To ensure that everyone knows what is meant exactly by a certain term that you use in your company.
2. To create the best possible customer experience.
3. To avoid any misunderstanding on what service or product the customer has purchased from you exactly, and under which conditions.
4. In case of commercial discussions (and even litigation) about a term in the contract for whatever reason: e.g. exact services purchased (and under which conditions), the price for the service, termination possibilities, volume commitments, compliance and system requirements, etc.
𝗘𝘅𝗮𝗺𝗽𝗹𝗲
For a typical SaaS/Software company this means that the same terms/definitions should be used for the following documents (depending on the contractual set-up):
– General Terms and Conditions
– End User License Agreement
– Customer Contract / Master Ordering Agreement
– Order Form / SOW (Statement of Work)
– Annexes likes the Data Processing Addendum (DPA), Data Security Addendum and the Pricing Annex
– Disclaimer on the website
𝘓𝘦𝘵 𝘮𝘦 𝘬𝘯𝘰𝘸 𝘪𝘧 𝘺𝘰𝘶 𝘯𝘦𝘦𝘥 𝘩𝘦𝘭𝘱 𝘸𝘪𝘵𝘩 𝘺𝘰𝘶𝘳 𝘤𝘰𝘯𝘵𝘳𝘢𝘤𝘵 𝘵𝘦𝘮𝘱𝘭𝘢𝘵𝘦𝘴!
Tip 7: All templates in one place
𝐀𝐥𝐥 𝐭𝐞𝐦𝐩𝐥𝐚𝐭𝐞𝐬 𝐢𝐧 𝐨𝐧𝐞 𝐩𝐥𝐚𝐜𝐞
Remember to store all your (contract) templates in one central place to make sure that everyone is (i) able to find the correct templates quickly and (ii) using the correct template.
Sounds very straight forward, but in reality I rarely see companies that store all templates in one central place easily accessible for all involved team members.
Storing all contract templates in one central place is challenging for most companies, but especially in case of:
– fast-growing companies
– mergers/acquisitions
– activities in multiple countries
– large groups with many subsidiaries or a complicated corporate structure
– contracts in different languages
– involvement of different departments (Account Management, Sales, Partnerships, Sales Operations, …)
𝐖𝐡𝐚𝐭 𝐢𝐬 𝐭𝐡𝐞 𝐞𝐚𝐬𝐢𝐞𝐬𝐭 𝐰𝐚𝐲 𝐭𝐨 𝐦𝐚𝐤𝐞 𝐭𝐡𝐞 𝐭𝐞𝐦𝐩𝐥𝐚𝐭𝐞𝐬 𝐞𝐚𝐬𝐢𝐥𝐲 𝐚𝐜𝐜𝐞𝐬𝐬𝐢𝐛𝐥𝐞?
Best options are:
(a) fully/partly automate your contract creation and be strict that this is the only way that contracts can be generated. This way the relevant, most up to date and correct Contract Template is used and all templates are stored in one spot as you should only be able to use this automated system; and
(b) create a central place (usually an internal website or – less ideal – a shared folder).
𝐂𝐫𝐮𝐜𝐢𝐚𝐥: give training – at the start of employment and regularly thereafter – to your employees to make sure they know where the contract templates are located and how to correctly use these templates.
Tip 6: When making your specific contract, start with the correct template
Introduction
Previously in the series “How to improve contract templates”, we emphasized knowing the content of your contract templates. See the full article here: https://amstlegal.com/tip-5-review-the-contents-of-your-templates/. Now we’re zooming in on perhaps the most common issue with contract templates: How the templates are used daily. Because even with all the technology available to automate contract creation, most contracts are still created in word processing software such as MS Word. The templates are often saved in unstructured ways too. Additionally, the people that use the template contracts on a daily basis for a specific customer contract do not always use the correct template, i.e. the latest version, when making a new contract. While simultaneously doing that without using contract automation, unexpected risks can show up later on. Keep reading to learn what risks you could be facing, and how you can manage them.
When making a specific contract, start with the correct template
Why is it so important to start with the correct template?
Naturally, it sounds very convenient to use a contract of another client or the contract template that you have been using for years when making a new contract. However, this is the biggest risk associated with contract creation for companies that do not use contract automation. More time and money will need to be spent on the (re)negotiation of the contract and/or potential mistakes or claims in the future because your contract did not fit with the client or the specific situation. Using the correct template can be a step on the way to minimize encounters with these risks.
How do you minimize this risk?
So how do you avoid the risks connected to not using the correct template? There are many options to minimize those risks. However, we have found from experience that the two best ways to minimize these risks are:
- Fully/partly automate your contract creation and be strict that this is the only way that contracts can be generated; and
- Create a central place (usually an internal website) to store the contract templates, and give your employees regular training.
Unfortunately, the first tip can take some time to set up and requires recources for it to fully work. The pros outweigh that though, so don’t fear the power of technology when making contracts. For the second tip to fully work, we advise to provide training to the employees regularly. For example at the start of the employment followed by regular consistent training after that. This is our standpoint because you want your employees to know where the templates are located and how to use them.
Another tip that could be conjoined with the other two is to make sure that the importance of this is discussed regularly in your team or during company meetings.
Conclusion
To sum this article up, it can make a major difference on the aftermath of your contracts whether the correct template is used or not. Therefore we do advice to invest in good templates and good training for the employees. Doing this will make your contracting process much easier. If you feel like this is something that you would benefit from, contact us at AMST Legal for further personalized advice.
Tip 5: Review the content of Your Templates
Introduction
This is a follow up on the previous tip 4 to make a full list of all your contract templates. If you want to read that part, follow this link here: https://amstlegal.com/tip-4-make-an-inventory-of-your-contract-templates/. Staying on the same track, we at AMST Legal strongly advise to regularly perform a detailed review of your contract templates. That is part of our tip 5 of the article series “How to Improve Contract Templates”.
Keep reading to learn more about this appraoch.
Review the contents of your templates
Leaning back on the previous tip 3, which builds on cross-departemental collaboration, legal should review the templates – of course together with business – to make sure that the templates are all legally up to date and still work for all products/services that you are offering and cover all business risks. That require knowledge of the content of your templates though. The solution to that is to review your contract templates on a regularly basis.
What the review can show you
Think back to when the company started. In the beginning, the company might used certain contract templates without legal alignment, i.e. templates made by the commercial team or online templates. Another scenario is that the company has changed considerably. Thus, your company’s current needs might not be reflected in the contract templates.
Due to this review you might also find out that you can potentially:
- combine templates to limit the amount of different templates,
- remove templates that are not used, or
- make new templates,
Doing this can further improve the scalability & productivity of your company.
Pro-tip
Certain large corporates that I have worked with even ask an external law firm every two years to do a full review of their templates. That concerns e.g. General Terms & Conditions and Master Ordering Agreement. This ensures that their templates are up to date. It can also show how they generally can improve the templates for the business and their customers.
Conclusion
If you make sure to keep an eye on your templates you can ensure that the content will be up to date, Additionally, the contracting process can be made easier if unnecessary templates are removed.
Do you want to improve your scalability and productivity? Contact us at AMST Legal for tailored advice on how to do this in a simple way.
Tip 4: Make an Inventory of Your Contract Templates
Introduction
Earlier, we provided tips on how legal should not be afraid to involve other departments. You can access that article through this link: https://amstlegal.com/tip-3-legal-involves-other-departments/. Moving on, we are going to dive into the next tip in the series on How to Improve Contract Templates. This tip 4 concerns making an inventory of all contract templates.
Make an inventory of your contract templates
A must when using contract templates, which we at AMST Legal highly advocate for, is to
- Regularly make a list of all contract templates that your company is using day to day.
- Make sure you know how many specific/different contract templates the company has for its products & services, countries, languages and departments.
Best is not to only ask the legal department, but to especially ask the business (e.g. Sales, Partnerships, Procurement, HR) which template contracts they are using day-to-day. Just to make sure, also ask them to send you the exact template they are using and check if they are using the right templates.
After making the list, you might be amazed how many different templates are currently in use by the company and where they are all stored. Having this list will give you a better idea which next steps you should take to improve your contract templates.
Conclusion
Organizing your contract templates, reviewing how many you have, and sorting them can be a life saver in stressful times. Oftentimes you might not even need all of the templates that you have currently. So make sure to regularly check up on the status of your contract templates.
How many contract templates do you have in your company?
If you want to become even more structure, and streamline your contracting process – contact us at AMST Legal for tailored advice. Let’s take your contracting to the next level!