Start Your Agreements Off On The Right Foot
I’ve reviewed countless vendor agreements over the years. Along the way, I’ve seen order forms, terms and conditions, and ordering documents of all shapes and sizes.
Many have been well done. Others have been embarrassingly bad — unclear language, inconsistent terminology, misspellings, broken links, rampant typos, and much more. I recently received an order form that didn’t even include pricing!
Poorly written documents are problematic. They can jeopardize the closing.
First, the ordering documents you share often constitute the first impression made by your company on a customer’s procurement or legal department. If your paperwork is not professional looking and well done, your customers may assume that your company — and its products and services — are also poorly managed.
Second, these documents form the basis for a binding contract between the parties. Even though you have a handshake to do business, the procurement / legal functions can significantly impact various aspects of the transaction — things like timing, pricing, term of agreement and, most important, whether or not the transaction closes at all.
Here is a recent example of what not to do…
A client received a six-figure order form from a vendor that, unbeknownst to my client, had recently been acquired. When I clicked on the link to the terms and conditions within the form, I was taken to the acquirer’s terms and conditions — and the acquirer’s name, logo and product references were completely different than the ones within the vendor’s order form.
Naturally, we questioned whether the link was accurate and why there was a lack of consistency between the documents. Ultimately, the back and forth between the parties delayed the transaction for more than two weeks! Not only was the vendor’s lack of urgency frustrating, but – especially during these unsettled times – that unnecessary delay could have caused the transaction to have been cancelled altogether.
Here are a few easy but often overlooked particulars that every vendor can fix to avoid similar shortfalls and ensure that the relationship with the customer’s procurement/legal starts off on the right foot — so that the transaction gets finalized in a timely and prudent manner:
#1. Correctly identify each entity. Use your full corporate name and that of your customer; specify each entity’s principal place of business and state of incorporation. These details have legal ramifications and can easily be determined from publicly available information.
#2. Give documents a professional look. As with any marketing collateral, your ordering documents and agreements should look professional, including consistent fonts and formatting, standardized logos, lack of typos, etc.
#3. Specify renewal terms. If providing a service, such as a SaaS service, indicate whether the term will auto-renew and under what circumstances. Don’t be sneaky by leaving this pertinent information buried in the underlying terms and conditions.
#4. Specify invoicing terms. Clearly indicate when invoices will be issued, to whom they should be sent, and when they are payable.
#5. Define terms consistently. Defined terms should be used consistently throughout the ordering documents and the underlying terms and conditions. For example, if using “Customer” in the order form, don’t use “Subscriber” in the underlying terms and conditions; if referring to your offering as a “Service,” don’t call it a “Product” elsewhere.
#6. Include signature lines. Even if the document will be signed electronically, include signature lines for both parties, with separate lines for the actual signature, printed name, title and date of signature.
#7. Consider a “Special Terms” section. Inclusion of a “Special Terms” section (which is often blank) enables the parties to easily adopt terms that supersede the boilerplate terms and conditions, potentially avoiding a full review and markup of the entire document by the customer’s legal team.
#8. Respond quickly. If a customer has a relatively minor issue with an order form, respond and address that concern as quickly as possible. Not only will you close the transaction sooner, your performance here is your customer’s first indication of what they can expect from you on an ongoing basis.
When it comes to finalizing business arrangements, the documents memorializing the transaction may seem like an afterthought.
They’re not. Done well, this paperwork protects your interests while simultaneously reflecting positively on you and your company.