Contract Review: Proper Form to Prevent Future Breach
Before signing a contract, read through it carefully. Have an attorney review the contract. Make certain that you know what obligations are stated and/or implied. If you are uncertain as to your duties and you sign the contract, you may be liable for a future unintentional breach of the contract.
Contract negotiations, especially in the context of important financial contracts, can be taxing and difficult at best. An attorney can assist you with negotiations to ensure your needs and requirements are met. Additionally, your attorney can properly draft and/or review the contract, explain to you your rights and duties under the contract, and make suggestions as to provisions which may be necessary to protect your best interest.
The following is a good guideline for contract review. It is not an all-inclusive list, but may be used as a tool to assist with contract drafting and review:
- Make sure the language contained in the contract is clear and understandable. In most cases, limit the use of highly technical terms when possible. Unnecessary legal wording may make the contract confusing, thus use regular wording to make sure the parties understand what the contract says and means.
- Give a clear and concise description of the goods and/or services to be received.
- Give a clear description of the amount of money or other consideration for the contract.
- If any payments are payable outside the U.S., make sure the payments are in U.S. dollars.
- Make sure the contract contains a specific time and place for performance.
- The contract should contain a method of providing notice of default and opportunity to cure default.
- Rights, obligations, and duties of every party should be clearly listed. Each party’s responsibilities should be identified in understandable wording.
- Use clear and concise names when listing parties to the contract, including address, telephone number, fax number, and email addresses.
- Be sure you have a contact person for each party to the contract, including address, telephone number, fax number, and email addresses.
- Establish a date the contract is to begin and end.
- Make sure the contract contains all other important dates to the contract (milestones, deadlines, reports, etc.). Use full dates. Such dates should be clearly identified.
- The procedure for renewal of the contract should be clearly identified.
- If an employment contract, the procedure for termination of the contract should be clearly identified (termination for cause and/or termination at will).
- Indemnification, liquidated damages, attorney’s fees, waiver of contractor’s liability, waiver of statutes of limitation clauses should be incorporated if necessary or applicable.
- Establish the contract is governed by the laws of the State of Texas.
- Establish the venue for suit is in the county where the Company’s main office or parties signing are located or agree otherwise.
- If insurance is required, define the types and levels of coverage.
- Confidentiality provisions, if applicable, should be incorporated.
- Ensure Act of God or force majeure clauses are incorporated if necessary.
- Assignment by either party should be approved in advance in writing.
- Incorporate an Alternative Dispute Resolution clause, if required or desired.
- All appendices, exhibits, attachments, and schedules should be attached.
- Title and authority of person signing the contract should be properly stated and warranted.
- Spelling, formatting, grammar, punctuation and general appearance of the contract should be professional and accurate.
Preprinted form contracts should only be viewed as a starting point, not a final expression of the parties’ agreement. Protection for all parties is usually minimal to non-existent in such pre-printed forms. No pre-printed form can be expected to cover the particulars of all agreements between two or more specific parties. Having an attorney review and negotiate pre-printed forms may prove prudent and smart.
It is imperative that the terms of a contract are fairly negotiated, properly drafted, and reviewed to ensure the contract meets the intentions of the parties.