Managing the review and negotiation of contracts involves regular stack ranking of projects. With many agreements to review and other job responsibilities for both in-house counsel and business counterparts alike, the value or strategic importance of the agreement often determines the amount of attention it receives. Given this, attorneys and their business counterparts generally do not have time for a “deep dive” into every nook and cranny of an agreement under negotiation. They focus their available resources on the big-ticket items — obligations of the parties, termination rights, ownership, confidentiality, indemnification/limitation of liability, and the like — and may only have time for a cursory review (at best) of other contract terms that appear in most agreements, called the “legal boilerplate.”
If you have a little extra time to spend on an agreement, here are six clauses that are worth a closer review. Why these? If worded improperly, each of these clauses can have a significant adverse impact on your company in the event of an issue or dispute involving that clause.
(1) the Notices clause. Failure to provide timely notice can case major issues. So can failing to receive a notice that was properly served. If mail can take some time to be routed internally, consider avoiding certified or first-class mail as a method of service. Personal delivery and nationally or internationally recognized express courier service (FedEx, UPS, DHL, etc.) with signature required on delivery are always good choices. Notice by confirmed fax or by email to a role address (e.g., “legal@abc.com”) are also options to consider, either as a primary method of notice or as a required courtesy copy of the official notice. Use a role and not a named person in the ATTN: line – if the named person leaves, routing of the notice may be delayed. Consider requiring that a copy of every notice be sent to your legal counsel. Consider whether to make notice effective on delivery, versus effective a fixed number of days after sending (whether or not actually received). It is also worth considering making notice effective on a refused delivery attempt – the other side should not be able to refuse a package to avoid being served with notice. Ensure delivery is established by the delivery receipt or supporting records.
(2) the Dispute Resolution clause. Ensure the agreement’s dispute resolution mechanism (litigation vs. arbitration), and any dispute escalation language, is right for your company given the potential claims and damages that could come into play if you have a dispute. Make sure you’re OK with the state whose law governs the agreement (and ensure it applies without regard to or application of its conflicts-of-laws provisions). If neither home state law is acceptable, consider a “neutral” jurisdiction with well-developed common law governing contracts e.g., New York. Ensure you’re OK with the venue — consider whether it is non-exclusive (claims can be brought there) or exclusive (claims can only be brought there), and whether a “defendant’s home court” clause might be appropriate (a proceeding must be brought in the defendant’s venue). Finally, ensure the parties’ rights to seek injunctive relief — an order to stop doing something, such as a temporary restraining order or injunction, or an order to compel someone to do something — are not too easy or hard to obtain. In some cases, whether a party needs to prove actual damages or post a bond in order to obtain an injunction can play a critical role.
(3) the Order of Precedence clause. If your agreement has multiple components (e.g., a master services agreement, separate Terms and Conditions, incorporated policies from a web site, service exhibits or addenda, statements of work, project specifications, change orders, etc.), which piece controls over another can become critically important if there is a conflict between the two (e.g., liability is capped in Terms and Conditions, but unlimited in a Statement of Work). Ensure the order of precedence works for you. Consider whether to allow an override of the order of precedence if expressly and mutually agreed to in an otherwise non-controlling contract component. Don’t forget about purchase orders — they often have standard terms which can conflict with or override the contract terms unless they are specifically excluded. If you are negotiating a SaaS agreement, consider how acceptable use policies, terms of use, and other online policies may relate to the agreement. Watch out for other agreements/terms incorporated by reference, or on the other hand, consider incorporating your standard terms and having them control in the event of conflicting terms.
(4) the Assignment/Change of Control clause. If consent to assignment or a change of control is required, the clause can create significant headaches and delays during an M&A closing process or during a corporate reorganization. A client or vendor with “veto power” could leverage that power to get out of the contract, or to obtain concessions/renegotiated terms. Consider whether to include appropriate exclusions from consent in the event of a reorganization or change of control, but keep a notice requirement. Consider whether a parental guaranty is an appropriate trade-off for waiving consent. Also consider whether consent is needed in a transaction where the party continues to do business in the same manner it did before (e.g., change of control of a parent company only).
(5) the Subcontractor clause. Ensure you have approval rights over subcontractors where necessary and appropriate, especially if they are performing material obligations under the agreement or will have access to customer data or your systems. A service provider may not be willing or able to give an approval right to a subcontractor providing services across multiple clients, but may be OK with approval of a subcontractor providing services exclusively or substantially for your company. Include the ability to do due diligence on the subcontractor; remember that subcontractors can be an attack route for hackers seeking to compromise a company’s network. Ensure a party is fully liable for all acts and omissions of the contractor. Consider pushing security obligations through to the subcontractor. Require subcontractors to provide phishing training. Consider limitations on what obligations of the other party can be subcontracted.
(6) the Non-Solicitation clause. Consider limiting a non-solicitation clause to those employees key to each party’s performance under the agreement, and other named personnel such as executive sponsors or corporate officers. Most often, neither party can live up to a clause that covers every employee at the company. Ensure there are appropriate exclusions for responses to job postings, recruiter introductions, and contact initiated by the covered party. Consider whether the clause prevents soliciting an employee as well as hiring them, and whether you want to restrict one or both.