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Contract Negotiation Handbook: Getting the Most Out of Commercial Deals

Book Description

A good commercial contract is both a springboard and a safety net -- it provides the opportunity to expand and grow your business, but also to protect it if things go wrong. In a tough commercial world, getting the best deal you can is paramount.

The Contract Negotiation Handbook demystifies complex legal principles so that busy businesspeople can quickly and easily digest them. With clear, practical examples and case studies to help illustrate and explain different types of contracts and contractual situations, this comprehensive handbook will help you:

  • prepare for negotiations and identify contractual terms

  • make sure you have covered the 'springboard and the safety net' -- combining the appealing and less appealing aspects of contracts

  • identify the type of negotiator that your counter party is and how that affects your negotiations

  • develop an overview of contract law

  • devise a negotiation strategy

  • identify whether you are in a contractual dispute

  • prepare for and acquire the best result out of any contractual dispute.

  • Table of Contents

    1. Cover
    2. Contents
    3. Title
    4. Copyright
    5. Dedication
    6. About the Author
    7. Introduction
    8. Part I: The Contractual Environment
      1. Chapter 1: Springboard and Safety Net
        1. Optimism is a Good Thing in a Negotiation
        2. How the Contract will Give Your Business Bounce
        3. Sometimes Even the Most Skilled of Highwire Artists Slip!
        4. Working Out the Difference between Springboard and Safety Net Terms
        5. So what Does This Mean?
        6. The Two Levels of the Safety Net
        7. Two Sides of the Coin
        8. Who can Enter into a Contract?
        9. Being a Party to a Contract — what Does this Mean?
      2. Chapter 2: Contracts — what are they?
        1. Doing Deals — the Stuff of Life
        2. The Contract Tree
        3. What is a Contract?
        4. Types of Contracts
        5. Are all Contracts Equal?
        6. What are the Elements of a Contract?
        7. From Blurry to Precise — the Evolution of Contracts
        8. Now I am in the Contract, When Do I have to Start Performing It?
        9. But we didn’t have a Deal —I didn’t Agree to That!
        10. That Document doesn’t Reflect what we Agreed —how do I Fix It?
        11. I am not Happy — how do I Get Out?
        12. The Contract is Terminated — what does this Mean?
        13. I Know it’s not a Fair Contract but they Agreed to It!
        14. What are Illegal Contracts?
        15. Horses for Courses — Types of Contracts
        16. The Majesty of Master Agreements
        17. This is a Bad Deal — how do I Save Myself?
        18. But they are Just Standard Terms!
        19. The Hot Tips
    9. Part II: Doing the Deal
      1. Chapter 3: Preparing to do the Deal
        1. Making a Deal
        2. Know what you Want
        3. Know what you don’t Want
        4. Knowing what you will do
        5. What you Won’t do
        6. What do I Need to do to perform the Contract?
        7. Can they Do what they Say they Can?
        8. What ‘form of Life’ is your Counterparty?
      2. Chapter 4: Negotiating — doing the Deal
        1. A Four-act Play?
        2. Can I do a Deal? Drawing the Big Picture
        3. The Recap
        4. Locking them in before we are Signed, Sealed and delivered — do I Need To?
        5. More than Joining the Dots — Final Wording
      3. Chapter 5: Terms of Contracts to Keep an Eye On
        1. If it is in There, it is Important
        2. Conditions Precedent Clause
        3. Variation Clause
        4. Entire Agreement Clause
        5. Governing Law Clauses
        6. Joint and Several Liability Clauses
        7. Indemnities
        8. Guarantees
        9. Confidentiality
        10. Warranties
        11. Dispute Resolution Clauses
        12. Waiver
        13. Severability
        14. Fundamental Terms Clause
        15. Successors and Assigns
        16. Variation Clause
        17. Notices
        18. Force Majeure
        19. Exclusivity
        20. Restraint of Trade or Competition
        21. Exclusion of Warranties
        22. Statement of no Infringement of Third Party Rights
        23. Termination/Default
        24. Liquidated Damages Clause
        25. Further Assurance
        26. GST
        27. Other Clauses
      4. Chapter 6: Traps for the Seller — Pitfalls in Negotiations
        1. Misleading and Deceptive Conduct — what is it?
        2. Misled by Silence?
        3. Talking the Talk — the Art of Selling
        4. Competitors
        5. Identification Advertising
        6. The Hangman’s Noose?
        7. The Company and its People can be Liable
      5. Chapter 7: The Telltale Signs of the Overseller — Buyer Beware
        1. They Talk the Talk — where is the Walk?
        2. The Talk and the Reality Don’t Match
        3. I believe what You Tell Me, but I Still want to See the Paperwork
        4. Fast with the Mouth, Slow with the Pen
        5. We don’t Provide Warranties — Company Policy
        6. Dealing in Broad Brush Strokes — the Big Picture People
        7. These are Our Standard Terms and Conditions
      6. Chapter 8: The ‘red Zones’
        1. The Hot Tips
    10. Part III: The Relationship Ends
      1. Chapter 9: In the Contract
        1. Doing it the Easy Way
        2. Know Your Product
        3. Know who You are Dealing with
        4. Scorched Earther or a Relationship Developer?
        5. Communication
        6. Tears on the Pillow: Without Prejudice — Secret but Effective
        7. Options — Keeping the Balls in the Air
        8. So when do I Tell them there is a Problem?
      2. Chapter 10: What Happens if the Contract is Breached?
        1. Consequences for a Breach of Contract
        2. But I can’t Perform the Contract Anymore — it’s not Possible
        3. If I Breach the Contract are the Consequences the same as if the Other Party Breaches?
      3. Chapter 11: All Good Things Come to an End — Termination of Contracts
        1. The Term Ends by Time Passing
        2. Termination of the Contract by a Party under its Terms
        3. Termination at Law
      4. Chapter 12: Things Ended Badly — How You Know You are in a Dispute
        1. Asserting a Dispute
        2. Two Views of the World When Only One will do — the Genesis of a Dispute
        3. Maintaining the Secrecy of Your Communications
        4. What Lawyers Look for
      5. Chapter 13: Making Peace Early
        1. Generally Test the Waters
        2. If I Talk to Them I can Fix it — Straightforward Negotiation
      6. Chapter 14: Getting Help to Fix the Problem — but the Warring Parties Decide
        1. Everyone Needs a Little Help Sometimes
        2. What is a Mediation?
        3. Why Undertake a Mediation?
        4. Who Pays?
        5. What are the Formal Rules of the Game?
        6. Preparation for the Mediation
        7. The Mediation Itself
        8. Can we Settle After the Mediation?
        9. Strategic Considerations
      7. Chapter 15: Getting Help to Fix the Problem — Someone Else Decides
        1. The Position of Last Resort
        2. What You Need to Decide Before You Decide!
        3. Where will the Fight be Held?
        4. Court
        5. Arbitration
        6. Tribunals
      8. Chapter 16: Preparing for Battle — Getting Ready for the Hearing
      9. Chapter 17: Preparing the Case for Hearing
        1. Stage 1: Starting the Dispute — Statement of Claim
        2. Stage 2: Defence
        3. Stage 3: Cross or Counter Claim
        4. Evidence
        5. Stage 4: Discovery
        6. Stage 5: Telling the Tale — Affidavits and Statements
        7. Stage 6: Hearing or Trial
        8. Stage 7: Appeals
        9. Stage 8: Settlement in the Process — is it Possible?
        10. The Hot Tips
      10. Chapter 18: In Summing Up
    11. Appendix: The Cheat Sheet
    12. Glossary
    13. Index