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Detecting and Disarming 'Landmines' Hidden in Commercial Contracts

    Client Alerts
  • July 21, 2017

I bet this scenario is a familiar one: Someone within your organization fell in love with a vendor’s product, and she’s spent months negotiating the product’s purchase. With two days left in the month, you’re informed that “all” of the deal terms are settled, and you’re asked to spot any glaring deficiencies in the vendor’s form. Of course, you’re admonished not to make too many changes; your company will lose huge price incentives if you don’t sign by month’s end! You look at the 8-point-font contract and realize it’s legally onerous, with key elements of the deal nowhere to be found. You’re in a hard place.

To avoid finding yourself in that place, it is essential to have a contract attorney involved in a negotiation from start to finish, serving as a strategic partner on both business and legal concerns. That was a big theme of my presentation on Wednesday to the Research Triangle Area Chapter of the Association of Corporate Counsel: A contract attorney should have a seat at the table from the start of an important negotiation. I also detailed how to detect “landmines” hidden in commercial contracts so that you’re ready, once called upon, to add maximum value to the negotiation. 

Even experienced deal-makers can benefit from a transactional attorney’s cross-examination as the deal evolves from an initial phone call to a final execution-ready agreement. After reviewing hundreds of commercial contracts, we’ve learned how to spot the subtle tricks and traps that service providers embed in their form documents. In a room full of experienced in-house counsel from the Triangle area, many of whom were from software companies, we had an engaging conversation about contract provisions that often create risk and reliable strategies for “disarming” them.

I’d like to thank the ACC’s Research Triangle Area Chapter for the chance to present, and I’m especially grateful after hearing the ACC say our “lunch and learn” session had an unprecedented turnout. You can find my presentation here.