In building your business, you can’t do everything alone. You need business partners, employees, contractors, third party service providers, brand ambassadors, retailers. The list goes on. It literally takes a village to bring your business from concept through to the marketplace. Each one of these relationships entails a transaction: services to be supplied in exchange for compensation. But there are also additional expectations that are likely required to be met in order for the business relationship to be successful: confidentiality, deliverables, quality assurance, payment terms etc.
The best way to ensure that the business relationship is successful is to contractually bind the other party to those terms, in writing. Not to be overly cynical, but let’s do away with the “gentleman’s handshake”. It will get you nowhere when your business relationship goes sideways. Going forward, repeat the mantra: “I will get it [the agreed upon business relationship] in writing!” A written agreement clarifies the relationship, provides enhanced enforcement rights and clearly sets out each parties’ rights, responsibilities and obligations.
For the most part, agreements should be customized to fit the specific nuances of the business deal at hand. This article provides an overview of some of the terms that should be included in an agreement and the nuances of how those terms should be addressed.
Parties
Who is entering into the contract? Can it be assigned to a 3rd party? Who is performing the obligations? Is that entity bound by the contract?
Term
How long are the parties bound? Is it renewable? Evergreen renewal or on notice? How much notice? What are after term obligations?
Performance
Who is doing what? What are the performance milestones/deliverables? Who is performing it? Can a 3rd party be retained to perform the obligations? What is the criteria for performance? Are there quality restrictions/guidelines associated with the performance?
Consideration
What is the exchange for performance? Money? Reciprocal performance?
Payment Terms
Who is paying who? For what? When? Monthly? Quarterly? Annually? Based on commission? Based on performance success? Is there an approval process for additional incurred expenses?
Currency
What currency are you paying in?
Performance Milestones
What are the deliverables? According to whose standards are those deliverables met?
Termination
How can the parties terminate the agreement? Differentiate between fault and no fault. What are the obligations upon termination?
Breach
What is material breach? What is immaterial breach? Is there a notification process with an opportunity to fix the breach? What if you breach?
Resolution
How are disputes resolved? Internal process? Arbitration? Court? Where?
Governing Law
What is the governing law?
Non Compete/Solicitation
Be realistic.
Intellectual Property
Who is bringing what to the table? Who owns the background IP? Who owns the future IP? Is there a license back? Are the moral rights waived? Is there an assignment? Is there an obligation to not contest?
Confidentiality
What is confidential? Have the parties put up systems to protect internally? Who can share what information with whom? Does this obligation extend beyond term of agreement?
Reps & Warranties
Additional “outs” that lays the foundation of the agreement. (i.e. Has the right to enter into the agreement. Not limited by a 3rd party agreement. Has the right to license the IP)
Indemnification
Contractually shifts the responsibility.
Territory
Where does this bind?
Force Majeure
What triggers a force majeure? What non-performance is allowed under the force majeure?