Twelve Provisions/Clauses to Always Include in an Agreement
In addition to provisions required from a legal and administrative perspective, you should make sure that everything necessary to adequately reflect what you negotiated is included in the written document. Some basic, and other not so obvious, provisions that should be included are:
1. The specifics of performance requirements for both parties to the agreement. This includes detailed specifications and statements of work where relevant.
2. Detailed payment provisions, including any condition under which payment can be delayed or withheld. For example, late delivery and//or items that don't meet the contract performance requirements.
3. Delivery provisions that reflect the intent of the parties, including any agreed upon method for adjusting the delivery schedule during the period of performance. For instance, a buyer may want a provision that allows deliveries to be accelerated or stretched out during the performance period.
4. How and under what conditions the agreement can be modified.
5. Any agreed upon procedure for dispute resolution.
6. Any option provision, including when and by what means it can be exercised.
7. The specifics of any performance incentives, including the procedures for determining if they have been met.
8. Qualifying language relative to any issue that is excluded from the agreement, but in the absence of a statement to that effect, would reasonably be construed as having been omitted by error.
9. Necessary administrative procedures to implement the agreement.
10. All legal requirements as determined to be necessary by your legal counsel.
11. Any provision that you or your advisors feel should be included in the contract, which the other side insists isn't necessary. Work hard for inclusion of such provisions, since they are the very ones that will likely lead to future problems if they are left out of the document.
12. Definitive starting and completion dates, unless the nature of the work dictates that some form of flexibility should be built in.
*From the “The Negotiator’s Handbook” by George Fuller.