Reading Their Rulebook: A Pre-Commencement Review of Client Terms
Photo: The Société Commerciale Française de l'Indochine., Public domain, via Wikimedia Commons
An instruction seldom arrives on its own. Beside the brief there is usually a purchase order, a supplier schedule, or a set of standard terms appended to an email and marked for signature. These documents are drafted for the client's convenience, shaped by their procurement process and written by their advisers. They are rarely hostile by intent, but they are not neutral either. Reading them with care before saying yes is not a legal ritual; it is the moment at which the commercial shape of the engagement is actually settled.
Where the brief and the paperwork part company
Four areas account for most of the divergence between what was discussed and what is being signed.
Scope. A brief that says 'review and advise on the attached' sits very differently beside a clause requiring 'all such duties as the client may reasonably direct'. The first has an edge; the second does not. Where the terms create an open-ended obligation, the fee becomes an open-ended exposure, and the gap is usually discovered at the first request that falls outside the original conversation.
Payment timing. Thirty days from receipt of a valid invoice is not the same as thirty days from month end, nor sixty days from project completion. The phrase 'valid invoice' deserves particular attention: who validates it, against what criteria, and within what period? A validation step with no stated deadline can quietly become an indefinite hold, and the purchase ledger will be entirely within its rights.
Liability. Some client terms are mutual and proportionate. Others transfer risk wholesale through indemnities, uncapped liability or the exclusion of consequential loss in one direction only. A clause requiring the supplier to indemnify the client against all claims is not a drafting flourish; it is an instruction either to price the risk or to decline it.
Assumed responsibilities. Insurance levels, security questionnaires, rights of audit, rights to substitute personnel, obligations to report on subcontractors, and commitments to particular service levels all carry a cost. Some carry an administrative load that outweighs the fee. Both should be visible before acceptance rather than after the first audit request.
Governing law and jurisdiction. Confirm whether the terms name England and Wales, Scotland or Northern Ireland, and whether disputes must be raised in a forum you would not otherwise choose. This is a short check with long consequences.
Order of precedence comes first
Before reading anything else, find the clause that states which document prevails. If the standard terms override the brief, then the brief is decorative and every careful word in it can be undone by a general clause elsewhere. Where the order is unclear, ask for it to be clarified in writing. This single question resolves more confusion than any redline.
A one-page qualifications schedule
A redline invites a negotiation. A schedule invites a decision, and procurement teams generally prefer the latter because it can be filed. Keep it to one page and four columns: the clause reference, the client's wording in short form, our stated position, and the practical effect if the wording is accepted. Attach it to the acceptance email rather than to the signed order, so that the record is created before commitment rather than after it.
A worked entry might read: payment terms, sixty days from month end, our position is thirty days from a valid invoice in line with our standard terms, and the effect of accepting the client wording is a cash-flow burden carried for the full engagement. The same format handles scope ('as directed' against named deliverables), liability (uncapped against a cap at fees paid) and audit rights.
Language that corrects without confronting
Avoid 'we cannot accept'. Prefer 'we are able to proceed on the following basis'. Avoid 'your terms are unacceptable' in favour of 'the following points require alignment before commencement'. Frame the schedule as clarification rather than objection. The client's procurement officer is usually measured on compliance, not on argument, and a tidy schedule gives them something they can approve rather than something they must escalate.
A forty-five minute read
- Locate the order of precedence clause.
- Read payment, liability, termination and intellectual property. These four decide most of the risk.
- Check the definitions of 'Services', 'Deliverables', 'Client Materials' and 'Confidential Information'. Definitions do the quiet work throughout the document.
- Note the notice provisions: how changes must be requested, in writing, and to whom.
- Record the version and date of the terms you reviewed. Undated documents circulating in email threads are a recurring source of dispute.
When alignment is not possible
Occasionally the schedule will show that the risk cannot sensibly be priced. Say so early, in one short paragraph, and offer an alternative structure: a smaller first phase, a different contracting entity, or a named individual rather than a firm-wide commitment. A clear refusal at the right moment protects the relationship more reliably than a reluctant acceptance followed by a difficult conversation three months later.
The aim is not to win an argument about contract law. It is to ensure the work begins with a shared understanding of what is being bought, when it will be paid for and who carries which risk. That is the standard we apply at DGA Ltd: the client's paper is read, the differences are recorded, and the engagement starts on terms both parties recognise.
