I have a standing offer: if you send me one of your templates, I’ll tell you how I’d fix it.
One of my seminar customers took me up on my offer. I thought you might find my response of interest, so here it is, lightly redacted:
When assessing a contract, I consider five factors: what the contract says, how it says it, how the front and back of the contract are handled, how effective the document design is, and how the provisions are arranged. I considered from this perspective the services agreement you sent me, and in this email I suggest how I would go about redrafting it.
What the Contract Says
Regarding what the contract says, the issue is how much of the contract is “bespoke”—in other words, what proportion reflects terms that are more or less unique to the transaction being expressed and what proportion reflects terms that can be found in plenty of other contracts. What’s unique to the services agreement is what’s in appendix 1 (Scope of Services). The services agreement itself contains the sorts of provisions you’d expect to see in services agreements generally.
When I redraft a contract containing provisions addressing standard issues and I have my own version of those provisions, I’ll use my version. In the case of your services agreement, I’d be comfortable using my “boilerplate” provisions—those addressing matters such as notices and governing law. I’d also use my own confidentiality provisions, as I’ve devoted a lot of attention to the subject, largely as a result of preparing my own automated, highly customized confidentiality agreement.
How the Contract Says It
With respect to parts of a contract that aren’t standard, my attention turns to how it says what it says. That involves assessing all usages employed, whether important or not so important. That’s something I’m equipped to do—the 600 pages of the fourth edition of my book A Manual of Style for Contract Drafting (MSCD) are devoted to the full range of usages employed in contracts. In the attached version of the services agreement, I’ve marked around two dozen comments to give you an idea of what that scrutiny looks like. Many of my comments cite MSCD.
The Front and Back of the Contract
MSCD makes recommendations regarding what comes before the body of the contract: the introductory clause, the recitals, and the lead-in. It also make recommendations regarding the back of the contract—the concluding clause, the signature blocks, and any attachments. I would follow those recommendations if I were to redraft your services agreement. Some of those recommendations are reflected in comments in the attached version.
The look of a contract doesn’t involve content, but it does affect how easy a contract is to read and how professional it looks. I would change the design of the services agreement in the following ways.
The enumeration scheme of a contract determines how blocks of text are arranged on the page and how they’re enumerated. The current version uses an enumeration scheme that’s inefficient in various respects. I’d use instead the MSCD hanging-indent enumeration scheme, described in MSCD chapter 4 and in this blog post. More specifically, I’d use the “articles” version of that enumeration scheme, so sections are grouped into articles.
And I’d use a different typeface—typography professionals are unanimous that Arial isn’t a compelling choice. See MSCD chapter 16.
MSCD ¶ 4.79 describes the process of arranging provisions in a contract. Those considerations would apply if I were to redraft the services agreement. For example, I noted in a comment in the attached version that I would move the definition section.
The Cumulative Effect
Redrafting the services agreement in the manner described above would make it significantly shorter and dramatically clearer, and it would address your needs more effectively. As a result, deals would get done more quickly, you’d save time and money, and you would be less likely to get into fights over confusing contract language.
There you have it.