I have a lot of “pet peeves” when it comes to negotiating a supplier’s contract-like when they don’t want to make indemnification mutual or they give me a hard time about carving out infringement from the limitation of liability. What that says to me is that I’m not a valued customer and I’m dealing with someone that has either just graduated from law school or is on a low rung of the supplier’s corporate ladder. But what really ticks me off, what really sends me into orbit, what really makes me want to go ballistic on a supplier is when a supplier sends me their contract in PDF format. Mind you, I absolutely love Adobe. I think they make some of the best nearly-bug-free software products out there. So, it’s not that I don’t like Adobe-it’s the fact that I’ve gotten a contract in an unchangeable format.
I mean, aren’t contracts intended to be negotiated? Sure, I clench my jaw when I have to click-through online license agreements, and I smile and suck it up when it comes to shrink-wrap agreements. But that’s OK, because that’s what I’ve bargained for. When it comes to a semi-COTS software package, especially one that is pricey, I want to negotiate the *(&^%@# contract. Otherwise, if I can’t negotiate it, it’s just another adhesion contract and I have enough of those in my personal life, like when I park my car and “assume all risk.” I’m still OK with that, but I’m not parking a car here, I’m buying an expensive piece of software (or whatever)!
When a supplier sends me that PDF contract, they’re impliedly saying a number of things I really find offensive. “We don’t want you to redline the contract.” “We don’t trust you to redline our contract.” “We want to make redlining so painful for you, that we want you to write the redlines in the form of an amendment to our PDF contract.” At the same time, the supplier wants to be my newest best bud and take me out for lunch. Stand in line, supplier, there are other suppliers out there that want to take me to lunch AND use MY contract template.
So what do I do when I get a supplier contract in PDF format? Well, the first thing I do is send them my contract template-again, because I probably already sent it and the supplier is now engaging me in a dizzying battle of the forms. If I have no leverage because the supplier has hypnotized my customer and I’m forced to use their contract template, I give them an earful about how unprofessional it is to send a PDF contract and I scream bloody murder for them to send me their template in a Word format. Or better yet, use my contract template. If they still give me a hard time, and sometimes they do, I whip out one of my trusty PDF crackers and bust their PDF into a Word document so I can hack at it. If you don’t have one of those crackers, they’re worth every penny.
So suppliers, wake up and get real, save the PDF format for the final version of the contract and treat your customers like we keep you in business. You might even be able to reduce your own costs (and mine, right?) by not having to buy so many Adobe Acrobat licenses.
Here’s the irony that makes everything all better for me: I just love sending my comments back to a supplier in a PDF format.
[Stephen R. Guth, Esq., CCCM, C.P.M., CTPE is the executive director of NRECA’s Vendor Management Office. He can be reached via e-mail at firstname.lastname@example.org.]