To maximize the impact of a strong contract on your company's growth and value, Golden Section recommends working with your legal counsel to assemble a contract playbook. A contract playbook is a document that outlines your standard contractual terms, a short justification for those terms, and any acceptable or unacceptable variations.
- Having different versions of contracts, especially when they differ in critical ways, is a value killer at your next round of funding. Potential investors or buyers are fundamentally buying your contracts, not your product, and so will want specific terms in your contracts. If there are differences between their needs and the existing contract terms, investors may significantly discount your value.
- It is your goal to create a scalable, efficient sales process. Streamlining the contract process as much as possible prevents lag on your part when the time comes for contract negotiation. You will have a contract template and a set
process for term negotiations, reducing the need for executive or outside legal input. Spending less time in contract negotiation prevents stalls in your pipeline. You will also have clear boundaries for what terms are unacceptable for your company and can walk away from prospective deals more quickly if mutually agreeable terms can't be found.
- A contract playbook aligns all players (executive team, sales team, legal counsel). This can be particularly helpful for the sales team; it will save time for them to know upfront what terms are acceptable to your company and which ones will kill a deal so they can negotiate with a prospect more efficiently.
- Compiling a contract playbook is a financial investment. Even though you will need to pay legal fees to get assistance creating it, having a contract playbook will likely save your company money over time. Many decisions and scenarios will be considered at once in a more thoughtful and efficient approach so that you don't need to engage your attorney for future one-off questions as often.
The impact: In addition to being the core of your enterprise value, contracts protect your interests and manage your risk. Contracts are vitally important. Well-managed contract execution can assist the scalable, efficient growth of your company and increase your enterprise value.
The goal: Create a contract playbook to streamline the contract negotiation process and maximize the value of your executed contracts.
How can Golden Section Assist?
Background
By the time you reach contract negotiation, you have typically invested considerable time and resources into moving this prospect through your pipeline. Your sales rep is motivated to close this deal - a return on the time spent, quota attainment, and earned commission are all within reach - and does not want to lose it over terms that may not impact him. However, the executed contract is crucially important to your company and is not a stage to be glossed over. Poorly negotiated contracts can be costly in terms of resource cost, potential for revenue loss, addition of risk, and future devaluation.
- Streamlines the contract negotiation process so that deals do not stall in this late stage of the pipeline.
- Sets standards for contract terms and a process for negotiation so that your company does not enter into unacceptable contracts. Standards align the interests of your Sales Reps and your company.
Steps
- Analyze previous contracts and create playbook
- What are the key terms most important to our company? In other words, in which areas are we most vulnerable to risk and need to protect? Additionally, which terms affect key revenue drivers and need to be optimized?
- Use this information to fill out the Section, Term, and
Standard Agreement Language columns.
- Why did we use this language on the standard agreement? How does this term affect our company? Why is it important?
- Use this information to fill out the Justification column.
- How have prospects responded to our standard language in regards to this term? What portion of prospects raise concerns over it? How serious are the objections? What, specifically, are the objections? Has the sales team found any responses that effectively counter a prospect's objections?
- Use this information to fill out the Common Customer Objections
and Response to Objections columns.
- What alternative language have we used in past contracts in regards to these key terms?
- In retrospect, would we use those terms again?
- How have those alternative clauses affected our ability to do business, risk, revenue, customer relationship and customer retention?
- Note: It is especially important to get input from the executive and sales team to answer these questions. These are not straightforward answers. Rather, different perspectives, needs and priorities need to be understood and balanced to identify the right approach to balance risks and rewards that align with company objectives.
- Use this information to fill out the Acceptable Fallbacks and
Unacceptable Fallbacks columns.
- Rank the Acceptable Fallbacks in terms of company preference. This will set the process for contract negotiation.
- Codification and Use
- Set a process around how to use the playbook: does the contract negotiation process need to be documented? When does an altered contract need prior approval?
- Distribute the contract playbook among the executive and sales team.
- Train the sales team on expectations and how to use the
- Update regularly.
A note on contract negotiation strategy: Not all customers will negotiate terms, but enough will that a negotiation strategy should be considered to put your company in a prime spot to get the most beneficial terms. To that end, we recommend putting one blinking, red button term in your contract. This would be one term that stands out from the rest as particularly weighted in your favor. For those customers who need to negotiate, this blinking red button will anchor their criticism. As the negotiation process continues, the customer can focus their attention on that one issue, avoiding negotiation on other terms. Additionally, if the customer raises objections on other terms, you have a lot of room to fall back on the blinking, red button term in return for not moving in regard to additional objections.
Generally, Golden Section believes you can stand by your contract without caving; a customer only negotiates a contract when the ROI you're offering is not strong. Your contract should leave you and your customer on equal footing. However, if the customer is forcing negotiations, Golden Section recommends never altering your terms without having an ask in return.
Term: Data Rights
BACKGROUND
If the opportunity presents itself down the road to monetize the data that you have accumulated from your core business, then your company needs to have the data rights to capitalize on that opportunity. Without data rights at the outset, it is very difficult to retro-actively obtain them.
Additionally, in certain regulatory environments where data owners intellectual property may be determined by legislation, your company can end up having data on its system that doesn't actually belong to the company. Additionally, your company can be at risk if someone uses your product for illegal activities. Having a strong Data Rights clause in your customer contract protects you so you're not responsible for the data on your product and also allows you to use and monetize the data in your product.
IDEAL STANDARD LANGUAGE
- Work with your legal counsel to develop Ideal Standard Language for this term.
Term: Assignment w/o Approval
BACKGROUND
When it comes time to sell your company, you are fundamentally selling your customer contracts. Your customer contracts are the inherent value of your business. If your customer contracts do not have an Assignment without Approval term, then each customer will need to approve the reassignment of the contract to the buyer. This adds uncertainty and a potential pitfall to the buying process. No matter how nice, a customer will likely use this situation as an opportunity to squeeze you. You don't want a customer to be able to renegotiate because of reassignment.
IDEAL STANDARD LANGUAGE
- Work with your legal counsel to develop Ideal Standard Language for this term.
Term: Billing on Signing
BACKGROUND
To reduce your AR cycle and improve your cash flow, you want to do all you can to collect payments as quickly as possible. Golden Section recommends including Billing on Signing in your customer contracts so that you can bill as soon as a contract is signed, when a customer is most excited about your product.
IDEAL STANDARD LANGUAGE
- Work with your legal counsel to develop Ideal Standard Language for this term.
Term: 3 year term / 24 month renew
BACKGROUND
A 3 year term length is actually a placeholder; in reality, for B2B companies specifically, Golden Section recommends you negotiate the longest term you can. As previously mentioned, when it comes time to sell your company, you're selling your contracts, and a contract is worth more the longer the remaining term.
From an operational perspective, a longer term also buys your company more wiggle room should there be any operational problems; you can resolve the problem with enough time remaining in the contract to repair the customer experience. Additionally, the longer the term, the more equality that exists between your company and the customer; with a longer term, you're not indentured to serve that one customer because the customer can't churn whenever they want.
IDEAL STANDARD LANGUAGE
- Work with your legal counsel to develop Ideal Standard Language for this term.
Term: Annual Escalation
BACKGROUND
Through this term, you can give your company the opportunity to escalate the customer price before the expiration of the contract term. Typically, this term will set a maximum allowable annual escalation.
As discussed in the Play: Customer Contract Playbook, Golden Section advocates for a blinking, red button in your contracts to anchor your customer's attention and negotiations. The Annual Escalation term is a great opportunity for a red button. For example, you could set a specific, high percentage as the maximum annual escalation. During negotiations, you could retreat all the way back to no escalation. However, Golden Section has found success countering with an objective, outside standard percentage (ex nominal healthcare CPI) rather than falling back all the way to zero.
IDEAL STANDARD LANGUAGE
- Work with your legal counsel to develop Ideal Standard Language for this term.
Term: Dispute Int % and Late Payment Penalties
BACKGROUND
The terms regarding Dispute Interest Percentage and Late Payment Penalties are your leverage to prevent lengthy disputes and late payments, which can be very costly in terms of lost revenue, missed opportunities and time sucks for your company.
It can take up to three years to get a judgement in the case of a dispute. If the case is decided in your favor, the customer is required to pay pre- and post-judgement dispute interest. Golden Section recommends including the highest dispute interest allowable by law in your contract to disincentivize a customer from engaging in a suit. Additionally, if the dispute rate is not specifically set in the customer contract, you are limited to the maximum set by the state. In Texas, the statutory dispute interest is 6% and in other states, it is de minimis.
Late payment penalties should be very punitive and clearly detailed. With some of our companies, Golden Section has set a high flat late fee, which we recommend because it is easy to
understand and encourages on-time payments. A punitive late fee needs to be worded that late payment causes default.
One important prerequisite to late payment penalties: your company must have in place an effective invoice process delineated in the contract. You need to be able to say you invoiced properly, according to the procedures outlined in the contract, so that there are no disputes.
IDEAL STANDARD LANGUAGE
- Work with your legal counsel to develop Ideal Standard Language for this term.