Commercial Contracts

Business lawyers have the experience to draft, review, and negotiate the nuances of business contracts. Unfortunately, many businesses use templates found on the internet or borrowed from other businesses which are not tailored to the needs of the company. Such practice can create liability well beyond the cost of drafting appropriate agreements from the onset of a venture.

Commercial contracts include many aspects of business agreements.

The business attorneys at Kirkpatrick Law have drafted, reviewed, and negotiated hundreds of business contracts from the routine to the complex, especially in the areas of software and other technology.

Which commercial contracts should my company use?

There are a variety of commercial contracts that companies should use for consistency in their business dealings. Some basic contracts that a business should draft at the onset of the business include:

  1. Non-disclosure Agreement
  2. Non-compete Agreement
  3. Employment Agreement
  4. Independent Contractor Agreement
  5. Buy-Sell Agreement
  6. Sales Agreement
  7. Warranty

Using these business agreements can help ensure that the language of interest to the business is included from the beginning of a new business relationship.  Other agreements that a business is likely to encounter include:

  1. Real Estate Leases
  2. Procurement Agreements
  3. Loan Agreements
  4. Software Licenses
  5. Banking Account Agreements

Should I copy a sample contract from the Internet?

This answer may seem obvious, but it seems that many businesses frequently take sample contract templates from the Internet or some other source and then implement the same agreement into their own business. Even worse, business that use competitor agreements may ultimately include names or references that reflect its source. In addition, sample agreements are often intended to be used as a base to start drafting from, and not intended to be a final contract. Some sample agreements may be industry specific and not intended for the use of the type of business copying the agreement. Another problem can occur when a business copies a contract which includes terms favorable to a buyer when the business intends to use the contract to sell a product, or vise-versa.

Another practice that is discouraged is copying a sample contract and the business subsequently modifying the agreement before sending it to the business attorney to review. This practice is one that a business might take in an effort to save money on an attorney. However, a consequence of such action can actually lead to an attorney requiring more time to review the agreement and may require more modifications. This is because a business that is not familiar with contracting drafting will attempt to mix-and-match clauses to form an agreement. Unfortunately, these piecemeal agreements can result in a confusing agreement with inaccurate references, inappropriate clauses, or conflicting language. What is worse, is that some modification made without a working knowledge of the law may be unenforceable or illegal.

When a business requires a new contact for use in its business, it should discuss the need with their attorney and request a quote of time or a fixed-fee for drafting the document. The money spent upfront to construct an effective agreement can be far less than the money that may be at risk from creating unnecessary liabilities.

What if our contract is not in writing?

It is true that some contracts may be formed without a writing. However, other contracts must be in writing to be enforceable. Whether a business’s oral or implied contract is enforceable will turn on the facts.  However, a prudent business will strive to create all agreements in writing. A written memorandum restating any oral agreement should follow any oral agreements.

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Commercial Contracts Q&A's