Get it in Writing
You’ve heard it before: Get it in writing. No exceptions. All terms should be expressly stated in the agreement, in detail. While oral agreements are in many cases valid and enforceable, it is better to have it in writing. You must have it in writing if the subject matter of the agreement falls under New York’s statute of fraud. Once it is in writing, start following these tips for reviewing agreements.
Identify the Correct Parties to the Agreement
Make sure the parties to the agreement are properly identified. You can save yourself a lot of trouble by checking the proper name of the other party and making sure it gets cited correctly in the agreement. If the party’s name is “Dry Cleaner, Inc.”, just “Dry Cleaner” won’t do it. You can check the names of New York entities in the searchable database of the Department of State, Division of Corporations .
Focus on Easy to understand Language
Insist on simple, easy to understand language. If someone with no knowledge of your particular situation does not understand the meaning of the provisions of the agreement, chances are, there will be ambiguities and conflicts later on in the life of the agreement. If necessary, have a person review the agreement who has no knowledge of law or the particular subject of the agreement.
Don’t put stuff into the Whereas Clauses
Agreements drafted by lawyers often start with “whereas” clauses which attempt to summarize the content of the agreement. Notwithstanding, all terms and provisions of the agreement should be in the body of the agreement and not only in the “whereas” clauses.
Review for Consistency and Completeness
Review the agreement for consistency and completeness. Think of possible scenarios that could take place in the course of your relationship with the other party and investigate the outcomes under the agreement. This process often unveils gaps or inconsistencies that should be fixed.
Review for an equal Bargain
Review the agreement for mutuality. If a provision offers some benefit or remedy to the other party, consider whether it would be fair to include the same benefit or remedy for you.
Check that Definitions are Consistent
Make sure all definitions used in an agreement are used consistently and correctly.
Pick a Governing Law
Unless all the parties to the agreement are in one state and the subject matter of the transaction takes place exclusively in the same state, agree on a law to govern the agreement, for example: “This Agreement shall be governed and construed in accordance with the laws of the State of New York.”
Agree on the kind of dispute resolution and the place of dispute resolution. For example:
“Any dispute, controversy or claim arising out of or relating to this Agreement shall be finally settled by arbitration in New York, New York, by a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. Judgment upon any award rendered in such arbitration may be entered in any court having jurisdiction.” However, as I explain elsewhere, arbitration may not always be right for the small business agreement.
Make sure proper Execution takes place
After review of the agreement, make sure the agreement is properly executed. Your signature and the signature of a person who is authorized to sign on behalf of the other party must be on the signature line of the agreement. If the agreement contains language such as this:
“the parties may execute this Agreement in counterparts, each of which is deemed an original and all of which constitute only one agreement “
it is ok if you sign one copy of the agreement and the other party signs another copy of the agreement. Both copies together will constitute the binding agreement. Faxed copies are ok, but you should try to get executed originals shortly after execution by facsimile.