Over the past 22 years or so, I have acted for vendors and users of many different forms of technology. In most cases, the vendors and the users are interested in getting the best deal possible at the best price and finishing with the system/software/web site that the user wants and needs. However, that doesn't mean that there can't be some games played along the way.
What follows are the most frequent lines used from time to time by vendors everywhere as part of that elaborate game known as negotiation. I have used some of them myself when the time is right.
Users should keep a healthy sense of scepticism when they hear them and those of us who use them should understand that the users may now be wise to us.
In the interests of making sure everyone is on the same page – and for a bit of fun – here they are:
- We don't need to put that in writing.
A variation on the "Trust me" theme used by salesmen everywhere. Unfortunately, there is usually a clause at the end of the agreement that states that the written agreement constitutes the entire agreement between the parties. Remember: If it is not in the agreement it is not in the deal.
- I have to get any changes approved at head office.
This is said whenever you want changes to the agreement. It is supposed to pressure you to make all your changes at once, or not make any changes at all since head office approval will, of course, delay your implementation date.
- This is our standard agreement that our lawyers make us sign. No one has ever asked for any changes before.
The agreement is usually delivered at the last possible moment, usually at 5:00 on the day the equipment or software must be ordered to meet your delivery date. Believe me when I say this – someone somewhere has asked for these changes before – and even if they have not – you just did!
- We can't change the standard contract because then our auditors won't let us book the revenue.
This is usually used if the customer has the audacity to ask for an acceptance test, warranties or remedies that may allow them to terminate the agreement.
- Don't worry about the schedules – we will do them later.
Unfortunately, they may never get done and important details may not get ironed out while you still have some clout to deal with them. The schedules can be the most important part of the agreement and they demand as much attention as the terms of the contract. They may be the only clear listing of what you are expecting to receive.
- You have our best price.
Ask for a "most favoured nations clause" to back this up. You will probably be refused if this is just a line.
- I have to get this signed today to get it into our year-end - otherwise the price will go up.
An oldie but a goodie – and surprisingly effective. It is a rare supplier that will really increase the price even if the year end date is missed, provided you can convince them that you will not accept the deal with a higher price. We have asked in the past that the supplier then re-bid the system at the new price and tell them that we will evaluate it again. This usually extends the year-end drop-dead date!
- Sign the license/sale agreement now and we will worry about the maintenance later.
This one is actually true – you WILL worry about maintenance. Once the main agreement is signed, the user's leverage to negotiate the sometimes tricky points of service levels and maintenance repair windows may be gone.
- Don't worry, we have this system in 20 other sites.
Find out if it is actually WORKING in any of them.
- Our hotline is staffed 24 hours a day.
Unfortunately the cleaning staff takes messages after hours.
- You have to pay the entire amount up front, but if anything goes wrong you can get your money back.
Easier said than done. No one is going to write you a cheque! You will have to sue for it – if they are still in business.
Now we all know.
Contact Amy-Lynne Williams for additional information on system acquisition.Disclaimer: This Newsletter is intended to provide readers with general information on legal developments in the areas of e-commerce, information technology and intellectual property. It is not intended to be a complete statement of the law, nor is it intended to provide legal advice. No person should act or rely upon the information contained in this newsletter without seeking legal advice.
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