LegalEase  
Battle of the Forms  
Understand Contract Language to Avoid Legal Woes  
b y C h i p G e n t r y  
ou would never enter into a  
contract without knowing all  
of its terms, right? Surprisingly,  
If you’ve decided certain terms are essential  
Y
to your agreement with the other party, it  
would be smart to explicitly negotiate the  
terms with them and then have them  
clearly consent to the negotiated terms in  
writing, all before executing the deal.  
it happens a lot, even to savvy business  
people. How many people want their  
sales grinding to a halt while lawyers  
argue over archaic and lengthy terms?  
Very few.As a result,many agreements in-  
volve less formal documents such as pur-  
chase orders and sales orders. Much of  
the language is“boilerplate.”Each party’s  
terms likely conflict with the other party’s boilerplate language would ensure that  
I added, “If you’ve decided certain  
boilerplate language in their forms. This Casemaker would be protected from terms are essential to your agreement  
makes terms of the agreement, such as ridiculous terms like this from buy- with the other party, it would be smart  
warranty or remedy provisions, unclear. ers. I wouldn’t have gone through with to negotiate the terms with them ex-  
If a dispute arises between the buyer and the deal if I knew about the ridiculous plicitly and then have them clearly con-  
seller, determining whose terms govern seller’s warranty terms included in the sent to the negotiated terms in writing,  
the agreement triggers a “battle of the buyer’s purchase order.”  
all before executing the deal.”  
Specifically, I provided advice on  
forms.”Let me explain by example.  
Not exactly the answer I was hop-  
ing for. If Casemaker and Mr. Sneaky the Uniform Commercial Code protec-  
can’t agree on the governing terms on tions, and how to maximize Casemak-  
I recently received a call from a small the seller’s warranty on their own, this er’s contract rights and best protect its  
window manufacturing company that issue will likely need to be litigated and interests by avoiding, as much as pos-  
HarsH Terms and CondiTions  
we’ll call CasemakerWindows.The CEO, determined by a judge.  
“Mr. Nervous,” frantically exclaimed,“I I explained that once you’ve contracted  
sible, the battle of the forms.  
Mr. Nervous said, “It makes a lot of  
need your help!” After listening to sev- with another party, even informally sense to negotiate terms beforehand  
eral minutes of his stressful venting, I through purchase orders, where contra- instead of hoping my boilerplate terms  
figured out that a buyer, “Mr. Sneaky,” dicting terms exist in boilerplate lan- win out in the end. Thank you.”  
was trying to assert a harsh buyer’s guage,it’s impossible to determine whose  
“Anytime,” I said. “Now you can get  
terms and conditions against Case- terms will win and govern the agreement. back to focusing on growing your busi-  
maker included in the initial purchase This is because the situation requires the ness while keeping your customers  
order. The conflicting terms, provided court’s intervention, so Casemaker may happy. Taking the right kind of precau-  
last in the order of documents, required ultimately be ordered by the court to tions before executing a deal will allow  
warranty terms far more burdensome comply with the damaging terms.  
than Casemaker’s standard warranty.  
you to avoid further battles of forms.”  
And with that,Mr.Nervous was off to set  
a meeting with his sales department. n  
“You may have a problem here,”I said. read Carefully  
Did you read all of the buyer’s purchase Afterwards, I attempted to calm  
order,including the boilerplate language Mr. Nervous by explaining how to  
at the end or on the back before accept- avoid this problem in the future.  
ing payment and sending the windows?” “It’s important to always read and  
C h i p G e n t r y is a  
founding member of Call &  
Gentry Law Group in Jefferson  
City, Mo. He can be reached  
at chip@callgentry.com.  
“Well, no but I always include our understand all of the language  
boilerplate language, which has far included in purchase orders and  
more advantageous seller’s warranty other forms from other parties,and  
terms in our sales orders. I thought my to draft your terms very carefully.”  
14  
USGlass, Metal & Glazing | August 2016  
www.usglassmag.com