الشروط الخمسة التي تحدد من يتحمّل المخاطرة

In most negotiations, price and duration are argued line by line while the provisions that determine what the contract is worth in a dispute are accepted as boilerplate. When something goes wrong, those provisions decide the outcome. Five recur.

Limitation of liability. A cap is usually negotiated as a number — one year of fees, or the contract value. The more consequential question is what sits outside the cap and what is excluded altogether. A clause excluding "indirect and consequential loss" can, depending on the governing law and the drafting, exclude precisely the lost profit that was the whole point of the agreement. Read the exclusions before arguing about the cap.

Indemnities. An indemnity shifts a defined risk wholesale and often survives termination. Three things determine its real weight: what triggers it, whether it is capped, and who controls the defence of a third-party claim. An uncapped indemnity in an otherwise carefully capped agreement quietly undoes the cap.

Termination. The right to walk away is worth more than most damages clauses. Watch for asymmetry — a supplier who may terminate for convenience on thirty days’ notice while the customer may terminate only for uncured material breach — and for cure periods, which decide whether a fixable failure ends the relationship. Also confirm what survives: confidentiality, licences, data return, and continuing indemnities.

Governing law and dispute resolution. These two clauses determine where a party must go, how long it will take, what it will cost, and whether the outcome can be enforced where the assets are. A seat chosen for convenience of drafting rather than enforcement can make a good claim commercially worthless.

Force majeure and change in law. Recent years have shown how much turns on the drafting of excuse clauses. Is the list exhaustive or illustrative? Does it require impossibility, or is hindrance enough? Does relief suspend or excuse performance, and for how long before either party may terminate? In regulated sectors, a change-in-law provision allocating the cost of new compliance obligations is often the more valuable clause.

None of these five is difficult to negotiate. They are simply not where attention naturally goes — which is exactly why they are where risk accumulates.