1. De-Constructing Commercial Contracts
A presentation to:
MCLE
November 7, 2017
Presented by:
Kevin J. O'Connell, Esq.
Verrill Dana, LLP
One Boston Place
Boston, MA 02108
(617)

2. Job = Helping Clients Accomplish Goals & Minimize Risk
IN THAT ORDER!
You must be able to :
Issue spot
Understand the business impact of the various methods of risk minimization
Be practical

3. Where to start? Understand the Client’s business goals
Don’t be afraid to explain “you can’t have it all!”
Best way for Client to avoid risk is to walk away from opportunity! But that’s not an answer!
Nor is: “It’s your call—I can’t/ won’t tell you what to do.”
Bring your knowledge/ experience/ judgment to bear on the circumstances.

4. Drafting Goals:
Express all fundamental and material terms of the contract in a manner that allows not only your Client, but also the other party, to realize the benefits bargained for while allocating risk between the parties fairly.

5. Key Issues
CHECKLIST OF ITEMS TO CONSIDER WHEN NEGOTIATING AND DRAFTING A COMMERCIAL CONTRACT
Title
Preamble/ Parties, Effective Date
Recitals—great opportunity! Describe background/ rationale, define terms, set the scene
Definitions—matter of taste. BE CONSISTENT! Be careful about defining a term and then not using it consistently throughout.
Term
Term can be time-based, project based, dependent on related agreement.
Address right to renew or not. Beware “evergreen”. Bear in mind renegotiation of agreement.
Watch out for price lock-in. If Term is renewed, likely need to adjust price.
Termination
For cause.
For convenience.
Procedures in either case. Notice. Survival of certain obligations?
 Operative provisions- the “guts”/ rights and obligations of the parties.
Will be specific to transaction. Often most challenging drafting task.
 Price and Payment
Who pays what to whom; when? How?
Formulas.
Adjustments.
Include/ exclude shipping, insurance, taxes.
BEWARE the MFN
For services—time and materials; fixed price; combo.
Setoff rights.

6. Key Issues Risk Allocation – (See materials of other presenters)
Holdbacks/guarantees
Reps and warranties
Indemities
Product Warranty (sales of goods)
Implied under UCC, Article 2 for sales of goods
Conspicuousness of disclaimer
Remedies
Termination
Indemnification
Limitation of liability (usually cap and waiver of certain kinds of damages)
Exclusivity of remedies/ cumulative remedies/ equitable remedies/ liquidated damages
Choice of law; choice of forum
Integration/ Entire Agreement
Beware the “battle of forms”
Watch also for NDAs, confidentiality agreements, term sheets
Other/ “Boilerplate”
No such thing as boilerplate
Waiver
Amendment/ modification
Assignment
Force Majeure
Dispute Resolution
Insurance—shouldn’t, but can complicate transaction.

7. Pet Peeves
MFN
Consistency among remedial provisions, especially indemnification
Lack of license language for use of IP (ex: trademarks/ brands)
Lack of attention to IP rights (ex: ownership of IP developed during course of parties’ dealings)
“Best Efforts”
“Fair value”
“Consequential” and indirect damages—lost profits/ diminution in value can be “direct”, so beware when waiving indirect damages
Passive voice—“by whom”? And how?
“Time is of essence”
Attachment and Schedules
Beware! And watch for inconsistencies or expansion of warranties, rights, etc.
Vagueness and ambiguity (“means what?”) – “reasonable,” “necessary,” “reasonably necessary,” “termination of employment by the Company,” “Licensor’s proprietary sales strategies,” “material,” “promptly,” “expenses include,” “herein,” “Employee must wear the uniform in the company locker”
Late changes not picked up; always remember to “pull the thread out without letting the sweater unravel.”