Negotiating power in contracts
Mark Sherwood-Edwards of Clearview Legal gives his tips on maximising negotiating power when negotiating contracts – applicable also in the data protection context.
For the purposes of this article, I am going to define negotiating power as the ability to have the terms you want included in the contract. It is also worth bearing in mind that, as a generalisation, negotiation plays out differently depending on whether you are acting for the buyer or acting for the seller. If you are sales-side, then generally the transaction is going to be happening on your standard terms, and so your ideal scenario is no negotiation at all, and your standard contract is signed without any changes. If you are buy-side, then you are (generally, again) trying to persuade the supplier to change the terms of its standard contract, so the negotiation process is more substantive. You will have noticed that the previous sentences have been liberally sprinkled with generally: that’s because there are some notable exceptions, the most obvious of which are public-sector purchasing, and purchasing by very large companies, where it is the buyer’s standard contract that will form the basis for the negotiation.
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