We recently had a client lamenting the day he decided to use a template he downloaded off the web when retaining a consultant to do work for him on a vital project. It turns out that the “template” did not address ownership of Intellectual Property in the deliverables his firm had wanted to re-use on future engagements and that the consultant continued to own the IP (copyright and patent rights) in those deliverables even though the client had paid the consultant handsomely for the work. You might say the client wound up “having his cake and eating it too”.

There are so many “perils” lurking in the underbrush of boilerplate contracts that it behooves businesses to seek counsel early in the negotiation to mitigate the risks and to ensure the appropriateness of using a template, even if it is a template of a contract previously used by the business on a prior engagement. What may have been fitting in that earlier context may be entirely unfitting for the deal you are negotiating today. More often than not (except, perhaps, for recurring sales of commodity products to the same customers) there are critical nuances in the business deal that are important to each of the parties. Often their unarticulated assumptions or expectations are very different. And often they simply fail to consider differing usages of the words in the text, how the contract is to be terminated, how liability is to be managed or limited, or any one or more of the “what ifs” that an experienced business lawyer can very quickly call to their attention. Sometimes all you need is a “road map” to keep you from ending up in a cul-de-sac or taking a wrong, costly and time-consuming turn. In our business, an ounce of prevention is truly worth a pound of cure. Think of our client who didn’t get the IP he thought he was paying for the next time you reach for that “free” template. It may end up costing you a whole lot more than you ever imagined.