Back to basics: Contract playbooks

In this edition of back to basics, we focus on contract playbooks. There are multiple types of playbooks, largely drafted dependent on the intended user of the playbook and accordingly, the playbook itself may differ in content, complexity and length. For the purpose of this edition, we focus on a typical playbook drafted for persons involved in a contract negotiation process, including lawyers (both junior and senior, in-house and external counsel), sales persons and technical leads.

A well-drafted playbook generally accompanies a standard or template company contract eg a Master Services Agreement or Standard Terms of Business that a company may present to its clients or suppliers. It serves as a guideline to the intended user to:

identify clauses in a contract that the company may, for whatever reason, view as being non-negotiable;
identify typical clauses in negotiations that a counterparty may raise, and provide parameters to the user as to what is acceptable to the company as a default position, fallback position, further fallback position(s) and even unacceptable positions;
provide the user with a clause bank or wording which the user may propose as an alternative to the default wording in the company’s standard contract template; and/or
provide guidance to users as to when a particular clause or issue is to be escalated for consideration if it exceeds certain parameters – this may also be linked to a company’s delegation of authority and may also serve as a corporate governance safeguard.

Used properly, a playbook will save a company considerable time, effort and expense in the contract negotiation process, and will lead to a much more collaborative negotiation process with the counterparty. For organisations that negotiate contracts on a frequent basis, the benefits derived from implementing a playbook (and the training that usually accompanies the implementation of such playbook) far outweigh the investment required to set up the playbook and the accompanying training required. It also ensures that the company adopts sound corporate governance practises and minimises risk to the company considerably.

Our expert TMT team have advised a multitude of entities in setting up playbooks as well as standard contract templates, and can assist your organisation to both to refresh your existing standard contract as well as a corresponding playbook, together with expert training to better equip users in the contract negotiation process. We also provide training on contracts for non-lawyers (including technical and sales personnel) on IT contracts that is practical and cost effective. Contact us today for a further discussion on how we can assist your organisation.

Ridwaan Boda
Technology, Media and Telecommunications | Executive
rboda@ENSafrica.com