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Contracts

Three reasons to educate the other side’s negotiators what to ask for in the contract

August 25, 2010

“If the other side doesn’t know what to ask for, it’s not my job to educate them.” That’s one reason a contract drafter might not want to use a PRECUT baseline contract form: the other side would be led to the Curator’s Notes for that form, which would give them a good idea of what [...]

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Leading off with a “killer” contract form document might be a bad idea

August 19, 2010

Some say it’s best to start a contract negotiation by sending the other side your “hardball” or “killer” contract form that’s extremely biased toward your side. By doing so (the theory goes), you set the other side’s expectations, and increase the odds that you’ll eventually get more of what you want. Doing so also gives [...]

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Why tech vendors should consider providing a written risk-factors disclosure sheet

May 11, 2010

A problem for vendors: Customer claims of oral misrepresentation Cheap insurance: Provide written disclosure of what could go wrong Disclosure of risks may actually boost sales Brainstorming risks can increase the odds of a successful project Related posts A problem for vendors: Customer claims of oral misrepresentation I recently wrote about why, when complex technology [...]

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Vendors, consider a no-reliance clause for your sales contracts, to help forestall claims of fraudulent misrepresentation

May 11, 2010

When technology deals go bad and everyone starts pointing fingers, claims of fraudulent misrepresentation are often a weapon of choice for customers’ lawyers in suing vendors. We saw that in two recent cases involving world-renowned software- and services vendors. To help preclude such customer claims, vendors should consider in­clu­ding a ‘no-reliance clause’ in their contracts. [...]

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Lawsuit-defense tip for software vendors: Clearly label demos and mock-ups as such

May 6, 2010

In making a sales pitch, it’s not uncommon for a software vendor to put together a non-working demo or mock-up of what the customer might see in the final, customized software imp­le­men­ta­tion. Such demos can be great sales aids. But they can also give rise to fraud allegations if the customer later claims, "you never [...]

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Why the fraud claim is the lawyer’s weapon of choice in lawsuits over failed technology projects

May 6, 2010

Two recent examples "They lied!" is an easier sell in court The threat of punitive damages raises the stakes Related posts Two recent examples When a big technology implementation proj­ect fails, the cust­om­er’s law­yers will pretty much always try hard to find opportunities to ac­cuse the vendor of having lied. Why do customer lawyers do [...]

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Dilbert on sales-contract negotiations

November 10, 2009

(This is a legit reproduction — the Dilbert site provides HTML code for embedding strips this way.)

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How to kill a big-company deal in the cradle: Refuse to use the other side’s contract form

November 8, 2008

If you’re an entrepreneur and want to kill a deal with a big company in the cradle, then follow the advice of ‘Uncle Saul’ in a post (otherwise full of good advice) on negotiating such contracts. See Kiss of Death – Contract Provisions Entrepreneurs Should Avoid at All Costs (hat tip: Hacker News). The author [...]

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Procurement people are shooting themselves in the foot – IACCM

July 12, 2008

The July IACCM Newsletter reports on its research results suggesting that procurement people at many companies are jamming onerous contract terms and conditions down the throats of their suppliers — but that this approach may in fact be counterproductive. “Ironically, as so much IACCM literature explains, this approach to risk management is self-defeating. By pushing onerous [...]

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Negotiating a customer’s code-of-conduct compliance request in a contract

July 9, 2008

Last week I helped a software-company client negotiate a software license agreement with a global corporation. The customer’s standard contract form included a requirement that the provider comply with the customer’s code of conduct.  The customer’s code of conduct was some 84 pages long. My client has other customers, of course; purely as an administrative [...]

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Contracts should explain their terms as necessary

May 2, 2008

I couldn’t disagree more strongly with my friend Ken Adams’s comment that, apart from the opening recitals, “in a contract you don’t reason or explain. You just state rules.” That’s way too categorical a statement for my taste. Contracts are read and followed by people, not by computers, and people sometimes need to be persuaded [...]

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