Whose contract should you use. yours or theirs? Find out here.

Hey guys, Simon here from The Contract Company.  Contracts, that’s all we do all day every day and sometimes overnight, lucky us.

So I wanna talk to you about the battle of the forms i.e. whose contract do you use, ours or theirs? Just before I go on, if you have any questions about today’s video, or in general, please feel free to get in touch with us. It is 1-800-355-455, or simon@contractcompany.com.au and we’ll be back to you as soon as possible.

Whose Contract Should You Use?

Okay so, you’ve been asked to sign a contract. You wanna engage someone to provide services to you, whose contract do you use, yours or theirs?

Now, we had this inquiry this morning from a client who basically said he wants to get an app developed overseas. He wants to give the app developer his contract. I was able to say to him, “Look, in my experience,” I’ve seen a lot of contracts.

“In my experience, it’s normal that the service provider, “either the one who’s providing the goods or the services, “is the one whose terms are used.”

Now, that doesn’t mean it’s a have-to, i.e you don’t always have to do that. With commercial law, you can basically end up doing whatever you like.

But, it’s normal that the person providing the goods or services offers to do so on their terms.  Then you usually then would look to negotiate or amend those terms. You can of course always put forward your own contract, if you’re the recipient of the services.

I think though, just from what I’ve seen, the optics are better.  As in, you’ll get the deal done and closed sooner if you use the service providers’ terms and conditions.

Rule of Thumb

So that’s the rule of thumb I generally use which is if you’re the service provider, provider of the goods, then you do so on your own terms.  This makes sense I suppose from a business perspective, i.e. you’re trying to sell your goods or services.  And fair enough, you should be able to set the terms upon which you want to do that.

So then the purchaser of those services or goods should really accept the terms upon which you wanna sell. In saying that though, sophisticated buyers of services will say things like, “Send me your proposal or your quote, “and once I get you acquired, I’ll look at it. ”

And just bear in mind that me or my lawyer “may want to come back to you “with changes to the contract.”

So what’s the point of all this?

A couple of points. One, if you’re the service provider or the provider of goods, it’s normal that you do so. I.e. you provide your goods or services on those terms.

And two, if you’re the purchaser or buying the goods or services, then it’s normal that you sign up to the other party’s T’s and C’s.

Negotiation

But that doesn’t mean you have to just sign up to them as is. You can, and you should negotiate those terms.

So for my bloke who was looking to get an app developed, I said to him, “Look, “if you wanna sign up to “and use the app developers terms and conditions, “that’s fine. ”

You’ve got a couple of key issues. “You’re getting what you want from the app “in terms of you getting what you pay for. ”

And secondly, and probably more importantly, “it’s the IP issue, who owns the IP in the app? “And when is that IP transferred?” So as long as he made it clear in the contract that he will earn the IP as and when it’s created, he’s laughing.

Okay, so I hope you have found that helpful. If you have any questions about today’s video, please give us a call 1-800-355-455 or get in touch with us here at The Contract Company, simon@contractcompany.com.eu. Thanks very much.

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