The Art of the Deal

Somewhere out there, there’s a founder proudly using a privacy policy they have copied from another site.

They have no idea what it says.

It sounded legal, and had big words - so they pasted it in.

Now they’ve promised to do things they’ll never actually do, with data they may not collect. Not a word about the data they actually have, and how they will use it.

Oops. Hopefully no one will send in a dreaded DSAR.

I’ve seen:

→ Cookie policies that don’t match your cookie use

→ Website terms ripped from irrelevant industries

→ SaaS contracts that don’t cover the actual services

Your competitor’s terms are fine for brainstorming, but they’re not fine for court. They won’t cover your risks and they probably miss the entire point.

When something goes wrong, it won’t matter that you meant well. 

Only what you promised - and that’s your contract.

You could compare business contracts to prenups, and rightly so.

Just like a prenup, a regular business contract should be sorted on time.

Thinking about your business deal: you’re not planning for it to go wrong, but it still might. That’s the point.

If it does, you want something better than an email trail or a vague memory of what was agreed.

The right time to write a clear contract is before anything goes wrong, not after someone’s feelings have changed.

It doesn’t mean you’re suspicious; it means you’re prepared.

Oh, and if you think I mean it’s just start-ups who don't get their contracts agreed on time… No, that goes for everyone. 

Thankfully, it's fixable.

Business leaders often ask why contracts are so long.

"Can’t we just jot down the main points in an email?”

“We’ve agreed to six months. We know what we’re doing."

Sure. Until something goes sideways.

The reason contracts are more than a few bullet points isn’t because lawyers love the sound of their own voice (although that may be true for some).

It’s because the bullet points don’t include the ‘what ifs’:

→ What if the client loses interest halfway through the project and decides to take a gap yah?

→ What if your developer delivers a website that doesn't work?

→ What if you miss a deadline because the client didn’t give you the info you needed?

Or even, very simply: what if you just aren’t a good fit?

Contracts don’t need to be long for the sake of it, but they do need to think ahead. A great contract nurtures a great business relationship. 

I’ve seen too many business leaders tie themselves up with beautiful handshakes and zero protection. And when things get messy, they have nothing to fall back on.

A little birdie told me that my clients are still using the contracts I drafted for them years and years ago.

Most people think contract negotiation is about arguing over clauses.

It is. And it’s not.

It’s really about getting the outcome you want without calling the relationship into question. It’s about documenting the deal for certainty. 

I help founders and commercial teams get the deal done in the right tone, with the right protections, and without weeks of back-and-forth. 

Sometimes that means being firm.

Sometimes that means being collaborative.

But it ALWAYS means knowing how to read the room. It requires sensitivity.

I love this work.

Negotiating with humans, not just documents; finding alignment, even when things feel challenging.

And most importantly:

reaching an agreement without losing your leverage, or your self-respect,

or your sense of humour.

Where does it all go wrong?

When no one actually knows what they’ve agreed to deliver – or accept.

That’s where SOWs (Statements of Work) come in. 

And please – get your fingers off that SOW template. Do. Not. DIY. They need careful drafting. There's a lot of litigation in this space, I hear.

One approach I suggest is to agree that if something goes wrong, you’ll try to fix it. Then, if you can’t fix it, the other party can walk away.*

That’s it?

No, not quite.

You'll need to work out what has been completed and should be paid for, who walks away with what, and so on. A little bit fiddly, always.

*Disclaimer: not suitable for every situation. Implement with proper legal advice. Handle with care.

This sort of remediation clause should protect the client. It should keep you in control (as long as you know what you're doing)! And it might prevent things from escalating.

Nobody WANTS to take you to court – it’s slow, expensive, and miserable. They just want to know that if something is not quite right, you’ll put it right.

A remediation clause might just get things over the line.

That, and a good insurance policy.

Every liability cap has its own context.

Some people agree on 3 x contract value, others prefer a flat number, and some go higher for personal data.

But sometimes small businesses have really large contracts, and a multiple of the contract value would break that business if they had to pay out.

So you have to ask:

→ What are the real risks?

→ Is personal data in scope?

→ How much could it cost to put things right?

I’ve seen people blindly copy what others do, and end up either massively overexposed or taking on liability they can’t afford.

My advice is: don’t guess, and certainly don’t copy.

Talk to your insurer, don't put your finger in the air, and don't be bamboozled into offering up your last shirt.

I used to be a singer.

People find this interesting, intriguing!

I should tell you straight away, making deals happen is definitely as good - but very different. 

If you want to get under the skin of a song, or a deal, it's an instinct. You must get a feel for meaning and intention. You must “get” your audience.

In negotiations, it’s the same instinct. You read the words, yes – but you also read the room. 

You sense the pressure points. You work out what matters most to the person on the other side.

That’s how you move a deal forward. That’s how you protect a client.

Yes, I still sing. I just get to choose exactly when and where.

I also choose my clients, who are lovely, without exception. 

Businesses will negotiate commercials for weeks.

But they’ll gloss over the choice of law and jurisdiction.

Often, it’s just seen as the “small print” at the back – an unimportant additional detail that doesn’t matter too much.

That’s a mistake.

Choice of law = whose laws govern your contract.

Your lawyers will draft on the basis of one country’s laws. If the underlying law changes, so do the implications. 

Terms can be implied automatically, and protections might disappear.

Jurisdiction = where a dispute is heard.

 If you’re based in England but a claim must be fought abroad, that means:

→ Hiring local lawyers (sometimes in another language)

→ Travelling staff

→ Unfamiliar courts and systems

It’s the difference between handling a dispute on home ground… or fighting uphill, overseas, on unfamiliar rules.

So choose the laws and jurisdiction wisely and work with a lawyer who does cross-jurisdictional work, for the best insights.

Liability caps are useful – but when it comes to personal data, they’re rarely enough.

Why, you ask?

Because data breaches come with a different set of consequences:

 → Regulatory scrutiny

 → Trust and reputation

 → Real operational cost

That’s why many contracts carry a higher cap for data breaches, known as a “super cap”.

(Yes, that’s what people actually call it – it’s not Marvel’s latest hero.)

Early-stage or growing businesses might think that something like a supercap is just bells and whistles, but it’s not. It means recognising that this risk is not like the others, and preparing for it.

If you're the supplier and your agreement treats a data breach indemnity like any other issue, you may have left your biggest risk uncapped. 

If you're the buyer, you might think an uncapped indemnity will benefit you, but your supplier's insurer won't be covering it. Do you want a bankrupt supplier, or would you prefer to have certainty on insurance cover for the indemnity?

My advice is, split it: one cap for general liability, a super cap for data. No rocket science involved here.

It doesn’t have to be complicated, but it might just save your business if things were to go wrong.

Is this a controversial view?

Warranties aren’t about creating a rod for your back.

They’re about being confident in your product or service.

A lot of founders worry that including warranties makes them vulnerable. But the opposite is true – it shows that you’re good at what you do.

When comparing vendor contracts, I am more impressed by the one that stands by its work. 

Why not provide warranties about your work if you’re really confident in your skills? 

Then, say that the client should pay you in stages (or milestones, or sprints, if that’s what you do) once they are happy with that stage of the work. 

How about that? 

But if the client's not happy and you can’t put it right, then everyone walks away. You only lose the value of the last stage, as does the client.

Not rocket science - but surprisingly, not always done.

We were told the internet would be a level playing field.

Everyone could compete. Everyone had a voice.

Except… the rules keep changing. No sooner have you mastered digital marketing than there’s a new platform, a new trend, a new algorithm you’re supposed to second-guess.

Really? Gah!

I don’t know the algorithm. I don’t need to. What I know is contracts. What I know is negotiation.

When I negotiate, my clients walk away with protection and a darned good deal that actually works in practice.

A contract is supposed to set out the risks. Insurance is supposed to cover them. The two need to speak to each other.

If your contract makes you liable for more than your insurance policy covers, you are taking on a risk you cannot absorb. 

A liability cap should align with the policy you already have in place.

It sounds obvious, yet many businesses never check. They sign contracts that promise the earth, while their insurance quietly excludes half of it.

Contracts and insurance are not separate silos. 

They are two halves of the same risk management exercise. 

Ignore that link, and you may pay the price.

"We don't have a contract, we just have a good relationship."

*winces*

Listen, a handshake is lovely, but what are its terms?

Businesspeople sometimes shy away from contracts because they think asking for one signals distrust - but that's not it.

A contract is about clarity. It’s the roadmap for when a good relationship hits a pothole – and it always does, through no one's fault.

An example:

One side might think they can walk away if they're dissatisfied: why would you force a client to stay? 

The other side is thinking, hang on, my cashflow and staffing is counting on those £££s, you're committed to the period agreed!

And bam, the relationship is precarious now.

A strong business is built on solid ground – so don't leave your business's future to a vague, unwritten agreement. 

Your contract is your safety net. Contracts are needed because life is unpredictable, and you must cover the bases. 

We understand why people cut corners with business contracts.

You’re running a fast-moving business, time is tight, and an “MoU” feels good enough. 

That is, until something goes wrong.

If a supplier misses a deadline or a client shifts the goalposts halfway through, suddenly, the gaps start to matter.

A quality contract ensures you avoid those expensive disputes later.

So, please ask yourself, do your contracts…

– Clearly list the services?

– Allow you the flexibility you need? 

– Only accept liability levels your business could realistically absorb?

– Let you terminate if you need to? (yes, people really do forget to include this)

Each side’s rights and responsibilities must be crystal clear, so you do not argue about it down the line. 

And that’s what we specialise in. 

Everyone says, “limit your liability.” Fewer stop to ask:

“Liability for what, exactly?"

In plain English, liability determines who’s on the hook if something goes wrong.

In contracts, this is often on the seller’s side (supplier, provider, etc) rather than the buyer’s side (customer, client, etc.).

Why?

Because that's where liability is likely to arise!

Because: to get something wrong or mess it up, you have to be in charge of delivering (supplying, selling, providing) it in the first place.

There's a limit to what the buyer (customer, client) can do wrong. 

They could fail to pay, fail to provide information, or fail to cooperate, for instance. 

If the buyer simply doesn't pay, that's a debt claim (provided the seller did their part).

If they don't provide information or fail to cooperate, well - that will impact the seller's ability to provide services and will REDUCE the seller's liability accordingly.

Provided the seller is paid, or not found lacking where the buyer is at fault, there's not much the buyer (customer, client) could be liable for.

You've found the perfect partner to help you grow your business. You both want to get started right away. You think, "We don't need a formal agreement. We trust each other."

This is a huge mistake.

A well-drafted partnership agreement isn't about mistrust; it’s about defining what happens when things go wrong. 

What if one partner wants to leave? What if one isn't pulling their weight? What if you disagree on a major strategic decision?

These are the "what ifs" that a good contract anticipates. It's a risk-management tool. 

A good agreement will define the roles and responsibilities of each party, the terms of profit sharing, and a clear exit strategy. 

Without one, you're leaving a lot to chance.

A strong partnership is built on a foundation of trust and a clear legal agreement. The agreement solidifies the trust.

A template is a checklist. A reminder not to forget the basics - limitation of liability, IP, governing law, all the boilerplate clauses, plus some scenario-specific terms. 

It doesn’t mean that anyone with a template can do it. 

No business, or deal, is “standard”.

A template doesn’t know your deal. It doesn’t know which rights you should not be giving away, and which clauses subtly favour the other side.  Or which aspects of a contract are considered usual and which are a bad idea for you.

That’s where real drafting comes in, by a lawyer who understands what you do.

I think about who is on the other side and where they’re likely to push back. 

I think about how to position you at the outset, so that the end result gets you what you need.

The first draft isn’t the finished product; it’s part of the negotiation strategy.

More art than science.