I suggest that it’s redundant to use both “may submit” and “agrees to pay” (I’d say “shall pay”); the former follows from the latter. And the idea of a waiver is interesting, but in your proposed language you’re having the Consultant waive a right it’s not clear it has.

Ken

With that caveat, I prefer Option 3 (the ‘is not required’), both because the logic is clearer, but also because it doesn’t obligate Company to forgo paying on the 91st day if it chooses to nonetheless give Consultant a break. Option 2 would put Company in the position of having to waive a condition (‘must submit’) if Company chose to ‘do the right thing,’ and thereby set itself up for all of the panoply of evils that flow from waiving conditions. Option 3 carries no such risk, since a payment on the 91st day requires no such waiver under Option 3.

I assumed, when offering my three alternatives, that they’d be preceded in the contract by a provision obligating the Company to reimburse the Consultant’s expenses. Incorporating in that obligation the time limit would be economical. But given the intended harsh consequence of going over the 90-day limit, I think it would be a good idea to be explicit about it. A court might conclude that it doesn’t follow from an obligation to reimburse for expenses that are timely submitted that the Consultant gets nothing on the 91st day. This involves “expectation of relevance,” something I discuss in this post.

Ken

My question on reading option 1 is, “what if the Consultant doesn’t submit claims?” Well, nothing happens, and nothing is intended to happen. This isn’t a legal obligation–this sentence just sets up a legal obligation. So the first step is to replace “shall” with “may”. But if we use “may”, then why do we need a 90 day time frame? What purpose does it serve? None. Take it out.

Then, if we want to get across the point that the Company (1) does have to pay timely invoices and (2) does not have to pay stale invoices, we need to say this. Pretty simple. Concept (1) is an obligation. Concept (2) is not an obligation of the Company, but a waiver by the Consultant. The waiver is important because if the contract is silent, we look at the default under applicable law–which probably would give the Consultant common law claims for reimbursement.

So it turns out that we need two sentences: The first is more of a “recital” setting up the second, which will be an obligation and a waiver.

I suggest:
Consultant may submit claims to the Company for reimbursement of expenses that the Consultant incurred in connection with a Project (each a “Claim”). The Company agrees to pay Claims with respect to a Project that are submitted within 90 days after the termination of such Project; and Consultant waives its right to reimbursement of Claims not timely submitted.

Why not:
Company will reimburse Consultant for all documented expenses incurred in performance of the Project submitted to the Company no later than 90 days after termination of the Project.