20 Contract Questions: how should I negotiate a contract?

In the previous post of this 20 Contract Questions series, we talked about understanding how to read a contract and what it means. Before that, we’ve talked about what a contract is, how you get to the contract stage, and how to read and write a contract.  In this post we’re going to discuss some tips for negotiating a contract. Continue reading 20 Contract Questions: how should I negotiate a contract?

How to use Non Disclosure Agreements properly

Tech and games companies love non disclosure agreements. Particularly enthusiastic companies tend to scatter them around like confetti.  Frequently you have to sign them just to walk into a big tech company’s lobby these days.  But NDAs are often misunderstood or used in the wrong way – which can have serious legal consequences. Besides which, we regularly see NDA ‘embargoes’ being breached, to no apparent ill effect.  In this post, I talk about what NDAs are, what they do and give some tips for how to use them more effectively.  Continue reading How to use Non Disclosure Agreements properly

20 Contract Questions: how do I get to the contract stage?

This is the second of my series of posts called 20 Contract Questions, addressing some of the most commonly asked contract questions I’m asked as well as the key matters I think you need to know to help you
negotiate and manage a contract successfully.
So, we talked last time around about what a contract actually is. Now we’re going to discuss about how you get to the contract stage in the first place.  Obviously, this being a legal guide, I’m going to focus on what this means from a legal perspective and less about the more businessy question of finding the right opportunity in the first place (try somewhere like GamesBrief instead) or more general business advice (try e.g. Both Sides of the Table). 
You know from my first post that in order for a contract to exist you need to meet some legal requirements: in particular, you need to have made a specific offer which is specifically accepted, and there needs to be an intention to be legally bound on both sides.  Bear that in mind now as I go through some key steps on the way to getting to the contract stage. Continue reading 20 Contract Questions: how do I get to the contract stage?

20 Contract Questions: What is a contract?

This is the first of my series of posts called 20 Contract Questions, addressing some of the most commonly asked contract questions I’m asked as well as the key matters I think you need to know to help you negotiate and manage a contract successfully.

What is a contract?

A contract is a legally enforceable agreement between two or more people settting out what they’re going to give each other and on what terms. Example: I’m going to develop some software for you, for which you’ll pay me. 

The five things you need for a contract to exist and be valid:

1) A specific, identifiable offer 

2) Acceptance of that offer

3) ‘Consideration’ (a legal concept basically meaning you both offer each other something of value)

4) Intention to enter into a legally binding contract

5) Compliance with any legal formalities

Let’s go through them quickly.

There needs to be an offer: you need to tell the other guy what you are proposing. It has to be sufficiently precise for him to understand your offer- a vague or incomplete offer may not cut it. In other words: don’t be lazy or cute when setting out your terms: better to be clear and definite. Ask yourself whether a reasonably intelligent man or woman on the street could understand your offer.

There needs to be acceptance: a communication of some kind expressing that your offer is agreed.  That is usually (and best) written confirmation, like signing a contract (but it can be verbal- more on that later). In some cases acceptance can be shown by the other guy just doing what was agreed (called ‘acceptance by conduct’). However, if you can’t point to a definite acceptance of your offer, don’t assume you have a contract because, in law, SILENCE IS NOT ACCEPTANCE: if you don’t get that acceptance of your offer in some verifiable way, no contract exists.

Everyone who’s negotiated a contract knows offers and then counter-offers are exchanged, sometimes repeatedly, before agreement is reached: that’s  why the law says no contract exists until a specific offer has been specifically accepted (otherwise you’ll never have certainty on which offer became the contract) (we’ll come back to this in a later post when we discuss ‘the battle of the forms’).

There needs to be consideration: you need to offer each other something. I won’t get into detail here because it’s a relatively arcane legal requirement in practice. Three simple points should suffice: (1) make it clear what you’re giving each other in the contract; (2) if one or both of you aren’t giving each other anything, execute the agreement as a DEED to ensure it is enforceable (there’ll be another post on this soon, so watch this space); [UPDATE] some countries may not have consideration as a legal requirement at all – e.g. Scotland doesn’t.

There has to be an intention to be legally bound: you can have an offer, acceptance and consideration but if you don’t actually want to contract with the other guy = no contract. Example: if your discussions are made “subject to contract” it normally indicates you don’t yet have an intention to be legally bound and therefore no contract exists. This is a double-edged sword: it can protect you for entering contracts before you want to…but it also means your negotiations have no legal force until you both agree they do.

Legal formalities: just be aware that some contracts, like guarantees or contracts for a land sale, have certain legal formalities you must comply with. Have a chat with your lawyer about them.

Does a contract have to be written to be valid?

NO. A contract can be made verbally just as validly as it can by writing.  BUT, 9 times out of 10 it’s far more advantageous to have a written contract, because it allows you to be more specific about the deal and to create a permanent record of that deal in case of disputes down the line.  Verbal contracts tend in practice to be a lawyer’s or businessman’s weapon of last resort essentially because they don’t have those qualities of thoroughness or certainty that a written contract does.

Practical advice: if you absolutely have to, you CAN legally rely on a verbal contract, but that should be your last resort.  If humanely possible, get a written contract – it can repay serious dividends down the line.

If it wasn’t clear enough already, here’s some examples why you should use written contracts:

  • Alan and Bob think they’ve agreed a software development deal for a contract by telephone.  A month later, neither of them can agree what they’d agreed the revenue share between them would be: PROBLEM.
  • Dave and Sue want to make a game together but they’ve not set out clearly how they’re going to own the IP in the game between themselves: FUTURE PROBLEM.
  • GreatGames Limited used to employ Steve, who made them a game without telling anyone he had created it using stolen code from BigGames Limited.  BigGames sues GreatGames.  GreatGames didn’t have a contract with Steve: PROBLEM.

These are all anonymised real-life examples of contract problems that people have told me about or sought my help on.  You get the message, hopefully: there are virtually no circumstances in which it is OK to not get a written contract of some kind in place.

Exceptions: the only times when a verbal contract or no contract at all could be OK:

(1) You’re in a position of extreme trust with the other contracting partner (and even then a contract would help) or

(2) The matter in question is so small that you don’t really care if there’s a problem down the line.

Rarely should that be good enough for you, so as soon as you can, get a written contract in place.

What does a written contract look like?

Generally speaking, there are no particular formalities. Contracts can be entered into as:

  • Exchanges of emails or letters
  • A single letter signed by both parties
  • Signing someone’s T&Cs
  • A short form contract
  • A full length ‘traditional’ lawyer-drafted contract 

Legally, each is as valid as each other. In practice, you need to balance the fact that detailed contracts are nearly always most protective against the cost and hassle of getting them written up. Sometimes you can live with something rather shorter, but sometimes you’ll need to go the whole hog on a matter that’s  important to your business.

In other words, while my advice is to get a written contract in place whenever you can , that doesn’t necessarily mean spending £££, $$$ or €€€ on it – far from it. But it DOES mean you should know your way around a written contract, which is what the next parts of this series will turn to. Next up: how do I get to the contract stage?

Postscript: I’m really, really keen to get comments from you about this series of posts.  Is it any good?  Too long/short?  What would be most useful to you?  Please let me know via comments below, Twitter or email -thanks!

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Introducing 20 Contract Questions…

UPDATE: thanks to Twitter, there’s been a burst of activity about this section of Gamer/Law.  Part 5 of this 20 part series is coming later this week!

Contracts are pretty important in any games or tech business (or any business at all for that matter). I spend at least half of each working day working on contracts or answering questions about them, in fact. But they can be complicated: lots of time and money is spent getting them right as well as fighting over them when they go wrong.  Just as importantly, in my experience a lot of time that SHOULD be spent on making a contracts work isn’t spent on it at all, with consequences for the contract and the business down the line.  Unfortunately, the games and digital media industries aren’t immune to this: in fact, being such a young industry, contract problems come up all the time. 

So, I thought I’d write a series of posts specifically about contracts, which I’m going to call “20 Contract Questions” (with a hat-tip to Nicholas Lovell here, who started me thinking about a series like this after I saw his 50 finance/VC questions series together with Nic Brisbourne, as well as to Will Luton of Mobile Pie for some recent tweets about the importance of contracts). 

Anyway- the first few posts are going to be about contracts generally and the remainder will be about specific legal issues you’ll commonly come up against when dealing with a contract. Here they are:

  1. What is a contract?
  2. How do I get to the contract stage?
  3. How do I read and write a contract?
  4. What does this contract mean?
  5. How should I negotiate a contract?
  6. How do I change or renew my contract?
  7. How do I say what I want them to do?
  8. What should I say about IP in the contract?
  9. How should the financial stuff work in my contracts?
  10. Allocating risk part 1: representations and warranties
  11. Allocating risk part 2: indemnities and limitation of liability
  12. How do I keep things confidential?
  13. What are boilerplate clauses?
  14. What do I do if someone breaches my contract?
  15. How do I terminate a contract?
  16. What does governing law mean?
  17. What is dispute resolution?
  18. Contracts you need, part 1
  19. Contracts you need, part 2
  20. So what were you trying to tell me? A contracts checklist

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When is a contract enforceable?

My friend Nicholas Lovell of Gamesbrief got in touch with me today to ask me about when a contract is enforceable and when it isn’t – he’d been discussing with some other Tweeters that sometimes contract aren’t enforceable in a consumer context.  They were also interested in what happens in a business context.  So I thought I’d blog about it. Continue reading When is a contract enforceable?