When it comes to drafting and negotiating contracts, the best advice, in fact, may not be legal but poetic. In his poem “Mending Wall”, Robert Frost has his narrator counter the proverb “good fences make good neighbors” with this advice: “Before I built a wall I’d ask to know / What I was walling in or walling out / And to whom I was like to give offence.”
In my previous job as counsel at Kintera and Blackbaud, two leading providers of nonprofit software, I noticed that the opposing counsel often missed an opportunity in contract negotiation to make practical modifications to agreements, ones that would have provided their clients with practical benefits. Their tendency to rely on a more traditional analysis of contractual terms missed a true understanding of the underlying transaction at hand. Put another way, as the design and construction of a fence should take into account its contemplated need and long-term use, so the starting point for a contract should consider the nature of the transaction and the actual needs of the client.
Confirming that your counsel has a complete understanding of the transaction will help ensure that your technology contracts are sufficiently tailored to your actual needs. Admittedly, this may be more of a challenge with technology-related agreements, given the constantly changing landscape. However, failure to do so may result in a variety of unintended and even detrimental consequences, including an agreement that does not appropriately provide the protections and enforcements you need.
When Frost’s narrator considers challenging his neighbor’s stubborn belief that “good fences make good neighbors, he remarks “Spring is the mischief in me, and I wonder if I could put a notion in his head: ‘Why do they make good neighbors?’ Such skepticism is healthy in any approach to contract drafting and negotiation: one should always ask the question “do the legal provisions make sense within the context of the deal?”
In later posts I will make further recommendations on the review of general as well as technology-specific contracts. For now, what’s most important when dealing with the tech contract is to ensure that your business and technical team fully review with your legal counsel the product you are purchasing, how it will be delivered (client-server, the cloud, software, etc.) and how it is to be utilized within your organization. This small investment in preparation will lead to a more successful and streamlined outcome for all involved.