The Legal Journey – let’s get you selling.

Day 1: Hi. So, you’ve finally taken the leap. Congrats. Now, I know you work on some pretty complex stuff. That means you will want to make sure you keep it confidential. I know you know that generally, but it is worth making sure that all discussions are made confidential in a way that you can prove. Do you want me to send you a non-disclosure agreement template? Fine, it will be with you later today. Don’t forget to get it signed before every confidential conversation, although technically you can make it apply to earlier conversations if needs be. If you’re planning a critical discussion or the other side wants an agreement that is significantly different to your template, come back and chat. As regards other things on your “to do” list, think about these three things: website, privacy and regulation. For your website, make sure you have the rights to use it, prepare some website terms, and think about who it is pointing at. For privacy, register with the ICO, prepare a privacy policy and work out exactly where all your data is. Then, work out whether what you are providing is subject to specific regulation (your legal journey is going to be a bit different if you are regulated!). Let’s talk about that last one. If you’re not sure, I can give you a legal opinion on regulatory requirements. You're not selling to consumers are you? Fine, let me know if you decide to do that. We have seen fit in this country to impose hundreds of pages of legal requirements if you want to do that. I can work out a consumer terms deal if you decide to sell to consumers.

Day 2: Nice to know the confidentiality agreement is working out. I understand you have been discussing a number of deals with potential customers. That’s great, but I’m sure some of them are now asking for more than just a chat.  You might find they want to test out some materials or play around with a dataset before they go any further. You could propose a material transfer agreement or data transfer agreement (you might know it as an evaluation agreement), which would allow you to do that safely without giving too much away. You definitely need to be careful with that approach. I have some agreements that will protect you, but you still need to choose what exactly you will give and what you will contractually allow the recipient to do. Also, sometimes businesses charge a fee for the opportunity to do that kind of evaluation - think about it but don't get your hopes up. While we are chatting, I saw the publicity you got the other day. There are some legal restrictions on what you can and can't say for that purpose. Next time feel free to run it past me for a legal marketing check.  

Day 3: That’s great, you got a new customer. I’m sure it will be the first of many. Next step is to get a contract in place. What are you providing in this deal; goods, services or both? Have you got a proposal for me to look at? OK, yes send it over. I will make sure the relevant parts of the proposal are incorporated into an agreement you can issue easily to the customer. Don't worry, I will also make sure it looks good. It will be a supply of goods agreement, services agreement or goods and services agreement, depending on what’s in the proposal. If this is an advisory project, you might need a consultancy agreement (similar to a services agreement). What is the customer expecting? If they are big, they might have a template they want to use, so it’s best to either get your agreement over ASAP (you know, first mover advantage) or just ask what they want to do. Their agreement might come in the form of a master services agreement, purchasing terms or similar, or they might have a big suite of templates and will pick the most relevant one. You might find that their agreements have lots of supply chain risk clauses like detailed force majeure and business continuity provisions, anti-bribery and corruptions clauses, references to standards and policies, loads of specific remedies (including a long list of termination rights and maybe delay payments) and more. It will all look quite nasty but focus on risk. Anyway, if they send you an agreement, I will review it and amend it for you. A contract review can be done in a way that fits your objectives, so start with what want to achieve. Look, reviewing a 50 page contract that is heavily weighted in the customer’s favour is a difficult and lengthy exercise (even using an AI assistant). Then, of course, once you have found out how utterly terrible it is from your perspective as a supplier, you will want to try to reduce the risk while still winning the job. Not easy. Let’s have a brainstorming session so I can help set you up to handle these situations without spending all your profit on lawyers. As a first step, write down what good would look like to you (in the money and practical sense) and check your insurance.

Day 4: Sounds like you’re getting into the swing of this. And when things are going well, the momentum might just take you places you didn’t expect. Great. You mentioned that one of your happy customers is developing some new technology and they want to incorporate yours. That’s exciting. For that kind of relationship, you will need a collaboration agreement. In a few words, this is about inputs, outputs, rights and freedoms. If you have the project plan, please send that over. Yes, I noticed the other party is not in the UK and that there is some mention of funding. So we should chat about funding terms flowing into and affecting this agreement and about international risks. Like with the sales contracting approach we talked about yesterday, there are difficult issues to identify, consider and mitigate, and the more thinking you do in advance about risk the easier and quicker this will be. Yes, it would be good to talk about this one too (maybe I could give you some pointers on international contracting), but I would also recommend you put together a package of all relevant documents and a summary of the project for me to look at in one session. If this is a big deal and you want someone by your side, you might even want to consider engaging me by the day. It’s going to work out cheaper and will set you up for next time too.    

Day 5: Well, well, well…I didn’t expect you to be asking about this so soon. That customer likes what you do so much that they want your technology to be an integral part of what they do. Happy days. If you want to go down that road, you will need an intellectual property licence. The exact form will depend on what technology you are proposing to license and what you want to let the licensee do with it. Develop your commercial model first and then I can take you through a licence questionnaire which will help you work out the deal and me to draft the agreement. There are lots of variations on this theme, and you might find that something else is more appropriate. For example, if you want to give them a taste and then do the bigger deal later, you could go for an evaluation and option agreement. If you want to work together first, how about a joint development and licence agreement. Or, if you decide this is actually more about them wanting to sell your stuff to others, then let’s chat about distribution agreements and franchise agreements. And finally, you might still want to provide your normal goods or services, which would make it a licence and supply agreement. These are all wonderful ways to take you to the next level, but there are risks you need to think about. Now that we’re at this level of complexity, it might be worth a legal workshop. That could be more efficient than a load of to and fro. OK, nice. See you next week!

Saturday: Crack open a cold one or pour a cuppa, relax for part of the weekend, climb a mountain, and look forward to a good time next week.

If you want to get selling next week, give me a shout. harry@hamiltonlawscientific.com