A contract playbook lists the terms and conditions of a contract type and provides clear guidance to negotiators for defending these provisions, offering variations of these provisions, or holding fast to the provisions as non-negotiable. Playbooks also give negotiators instant access to a plain language rationale for the organization’s use of a given clause and when to escalate an issue to a legal or business approver.
Contract playbooks can save time and money for organizations that repeatedly negotiate a given contract type. Equally important, playbooks ensure that the organization’s legal and business interests are served in its contracts, reducing risk.
Here are the basics of a contract playbook.
The provisions of a sales agreement, purchase agreement, non-disclosure agreement, license, or lease will be different and carry different levels of risk. Any one of these contract types should have its own playbook.
The language in the playbook should reflect careful drafting and review from both legal and business. Business provides guidance on what should be accomplished and protected in a given contract, and legal provides clear language that reduces risk to the organization.
With a playbook, an approved negotiator, even an attorney, should have the exact language in front of him or her, to be deployed without deviation. Alternate language (fall back clauses) should be ready to deploy verbatim.
They do this in three important ways. Playbooks give a short explanation of the legal language used for a provision. The rationale for the specific language is made explicit, quickly bringing a negotiator up to speed on the importance of the provision. Playbooks provide guidance for defending the provision from changes and the risks such changes present. Importantly, playbooks make clear when to walk away when a provision or its fallbacks are not acceptable to a counterparty. This reduces the temptation (or pressure) for a negotiator to give way on crucial points to get a contract across the finish line.
Playbooks are usually built around one’s own terms and conditions, but they should also address provisions likely to be offered by a counterparty, especially provisions that are not acceptable. The negotiator using the playbook should see clearly whether to decline the provision entirely or offer a prepared, acceptable version of it from the playbook.
Ideally, the playbook gives negotiators everything they need to conclude a sound contract without involving legal or more senior management. In some cases, however, it may be appropriate to show where any further change requires escalation to legal or business approvers.
A contract playbook often takes the form of a table or spreadsheet, with each provision represented in a row, and all the relevant information arranged in columns: provision name and number, precise language to use, explanation of the language, common points of objection, points of defense, alternate language (fallback clauses), and escalation information where relevant. An “approved on” date in the header/footer is vital, since a chief benefit of a playbook is to use the most recently approved terms and conditions.
When an organization – usually led by the legal departments – decides to create a contract playbook, it does so to save time and money, to improve contract performance, and to reduce risk. Creating a contract playbook means
The benefits of a contract playbook – why it’s important – are many. Here are a few.
An experienced negotiator can read and understand the position of the organization and confidently apply the guidance to a specific negotiation. Responding to a counterparty’s redlines is a matter of replying with acceptable changes or making a case for the organization’s original language. The negotiator is clearly forewarned about counterparty language that is not acceptable and can respond quickly. The time spent on this back-and-forth is reduced because the organization’s position is clearly laid out in the playbook.
A successful playbook should allow a negotiator to conclude a contract without going back to legal for review and approval. This saves time in the negotiation itself and frees up time for legal to focus on more complex negotiations instead of rewording the boilerplate. That reduces legal costs in terms of extra hours, new attorney hires, or legal outsourcing. Avoiding referrals for 50% of the target contract is a minimal standard; many organizations shoot for 80% or more for highly standard contracts such as NDAs.
When the playbook team has done its job right, the terms and conditions in the playbook represent the best position for the organization. When the playbook is adhered to, that position becomes standard across the organization. The risks of divergent language or different provisions are greatly reduced. The organization can rest assured that its contracts are working on its behalf from a business as well as a legal perspective.
A separate review of contracts by business, finance, and legal can pit these departments against each other. Creating a contract playbook brings these groups together to create language that accomplishes their goals while addressing their perceptions of risk. Playbook terms and conditions reflect the expertise of legal and the experience of the business manager. The rationale for the final language and the overall importance of a given provision is recorded in the playbook and becomes part of the training. This reduces internal re-negotiation and second-guessing of contract language.
As the legal and business landscape changes, so do standard terms and conditions. When a contract playbook is reviewed and updated (every two to three years is common), current language supplants outdated language going forward for everyone using the playbook. For this reason, a plan should ensure that negotiators have and use only the current playbook reflecting any recent updates. Control over playbook versions is easier to accomplish with an electronic playbook managed centrally and accessed by individuals via computer.
Reviewing past contracts for inconsistent or problematic language is a chore. While legal review of executed contracts and licenses cannot be avoided, the fewer variations in past contracts, the better. Over time, the use of the playbook produces contracts with consistent language across contract types, simplifying legal review and reducing nagging worries about individually crafted terms and conditions.
There are distinct advantages to creating and managing a contract playbook as part of a contract management software system deploying the same playbook across the organization, eliminating separate desktop versions that fall out of date, and updating and approving contract language in real-time. Using an electronic playbook as part of a contract management software system, a negotiator can refer to its terms in real-time and respond to redlines immediately. The negotiator can insert fallback clauses without risk of transcription error and clearly see non-negotiable points where she needs to hold firm.
Saving money and reducing workload are excellent reasons to start creating a playbook. The benefits are shared by every constituency in an organization: overworked attorneys, cost-conscious financial officers, backlogged procurement managers, eager-to-close sales managers, and multi-tasking contract managers. Best of all, your team members will up their negotiating game while your organization benefits from better contract management and reduced costs.
Ready to put your contract playbook into action as part of a contract management software system? Get your Contract Management Roadmap which will guide you in evaluating the right contract management solution. Or better yet, let us give you a demo of how it works in real-time. Contracts 365 is powerful contract management software built for businesses that run on Microsoft 365. We combine advanced features with expert configuration and thoughtful implementation to deliver the most flexible, secure, and easy-to-use CLM software today.