Small print with big impact

Nobody likes contract negotiations (except me).

You’re trying to set the tone for the relationship and the last thing you feel like you need is an argument over the fine print in the contract.

But here’s the tone you should be going for: we’re professionals. We’re concerned about professional things, like IP ownership. We’re a services business, not a bank. Your standard contractual terms should convey:

• We’ve thought about these things and how they affect both of us
• We’re treating you the same as our other clients
• You can’t walk all over us.

This is going to be a short read for such a big topic, because I’m a consultant, not a lawyer. You might want to implement these things straight away, or you might want to run them by your actual legal counsel. But here are 13 tips:

1. Offer to send your NDA in the first conversation. Push for it to be your NDA. Bonus points if you already have it filled in and send it ahead of the discovery call. Your NDA is much kinder than their NDA.
2. Your NDA and standard terms should now be disclosing how you deal with AI (assuming you do, no judgement if not). There’s a whole, wonderful episode of Small Spark Theory full of practical advice on this one.
3. Write down your new business policies ahead of your next new business conversation. Policy beats preference every time and being able to produce a letterheaded page saying “we don’t discount our rates” will usually be more of a deterrent than simply saying it out loud (during my time at Rise at Seven we never discounted our rates and I wrote an article about what happened one of the many times we refused).
4. If you do discount your rates, make sure all documentation includes the full price rate, with a line through it, to constantly remind the client that they’ve got a discount…that rate they’re getting is not the standard rate (that they can discount further next year).
5. If the client hints that they are going to ask for a discount (like if procurement put this in a pitch), inflate your rates and then discount them back down to normal. How are they going to know? Value is subjective and it comes down to whatever the client is willing to pay - perhaps they’re willing to pay a reasonable amount, just so long as they feel like they’re getting a deal.
6. Copyright your proposals, as well as coding them as Confidential (you do that, right?) - it’s not a massive deterrent but every little helps.
7. Most NDAs include a clause allowing each party to request that its confidential information is returned or destroyed. Have a look: yours probably has it; as does every NDA you’ve signed. If you lose a pitch and you don’t mind killing a relationship, consider using this clause.
8. Consider creating a policy around this clause and draw attention to it in the NDA…if you don’t get paid, they don’t get to keep the information. The only clients you’ll really put off are the ones who have no intention of paying you.
9. I’ve often been asked how Rise at Seven got away with sharing so many client results on social media…although we did get this wrong once or twice, in general, it was contractually obligated: our terms and conditions stated that clients agree to being case studies and award entries. Probably a third of the time, clients requested we amend this to stipulate that they have to approve the content in advance, which inevitably meant that they would “not unreasonably withhold approval”; another third of the time it was removed. But we were two thirds better off than if we hadn’t brought this up in the legal setting, where these things usually go to die later on.
10. I charge an unusually large amount of interest above the Bank of England base rate. Or at least, my contracts say that I will…I can think of only one or two times that interest actually got charged. That clause is there to be removed in negotiations, so I can compromise on something and push for something else to stay. These things are give and take, so it’s a good idea to include some stuff you’d be very willing to give.
11. Expect that things favouring you will probably be made mutual, so make sure you’re comfortable being held to the same standards before you ask for it. An example would be stipulating that you can terminate the contract at any time, but the client can’t; the natural comeback is that they should be able to terminate the contract at any time too. Far better to specify why either party might be able to terminate and otherwise suck it up.
12. Have good lawyers. If you’re going to get into a dispute, you want to know that your lawyers can beat their lawyers in a fight…it’ll give you a much stronger negotiating position (most of which is psychological).
13. Use eSignature software, even though it costs a bit of money. I remember signing a contract, downloading it as a PDF and sending it to a client (a national haircare business), who modified the PDF before they signed it. I use the eSignature feature in Google Workspace, which I pay for anyway.

I’d love to hear more tips you’ve got? I’ll update this post with them and credit you with a link (if you still care about such things!)