You’re about to enter a digital contract negotiation. What do you need to know?

Effective digital contract negotiation requires all the elements of negotiation of a standard contract, with some additional considerations. In what jurisdiction(s) will the contract be executed and performed, respectively? You must be completely familiar with any limitations on the use of digital signatures imposed by the various jurisdictions involved. What e-signature platform will be used? It is important that you understand the relevant technology. There are a variety of digital signature formats, with varying degrees of security. Not all are recognized in all jurisdictions.

The C-Suite or the department originating the contract need to very clearly communicate to the Counsel their plan and expected outcomes, the allocated project budget [if need be], key personnel, and a past record of the communication with the counterparty. In light of these, a Counsel can then draw their own plan from a legal point of view and become part of the negotiations. In this phase of providing us information, no information should be left out and there should be flexibility to reconsider if Counsel opines and advises otherwise.

Gear up for digital contract talks like a cyber-spy: master your negotiation platform, armor up with top-notch security, and navigate legal labyrinths with ease. Set your mission goals, know your opponent, and always have an escape plan. Communicate with the precision of a codebreaker and keep a treasure map of all your digital footprints.

It's crucial to consider the jurisdiction(s) where the contract will be executed and performed, as regulations surrounding digital signatures vary across regions. Being well-versed in these regulations ensures compliance and legitimacy. Apart from this everything is similar to the traditional method of contract negotiation.

We should also include a clause on agreement of the parties to agree to such mode of execution because lack of such a clause may affect the enforceability of the contract.

As counsels, it is important for us as well to research the counterparty entity. This helps in gauging their bargaining power, experience in the industry and as a plus you can learn the past experiences they've had so you can expect caution from them in certain areas.

Research the parties involved in the negotiation, including their backgrounds, interests, and priorities. Understand the legal and regulatory requirements relevant to the contract. Gather information about industry standards, market trends, and best practices.

This may not seem important, but it is: get comfortable with the platform, and prior to the start of the meeting, always have your windows ready to take over the drafting or share your screen if needed. You do not want to get off your game by panicking over how to navigate the platform, close your open windows before sharing, etc., with everyone watching and waiting. Save the nerves for the substance. There have been multiple times when I did not plan to be the drafter on screen, but you never know when the other side will have technical difficulties and asks you to take over on the spot.

Select a secure and reliable digital platform for conducting the negotiation. Consider factors such as encryption, authentication, and accessibility. Choose a platform that supports collaboration, document sharing, and real-time communication.

Draft your digital contract at first, as if you would draft a standard contract. This is my strategy. You can then adapt several parts of course however going with the standard outline will help you not to forget to negotiate what matters! So, make sure the parties contracting and purpose of the contract is clearly defined. The rights and obligations of each party should be clearly laid out - this is also vital in the digital world! Key terms which should always be in a standard contract are: - term of the contract - termination and effects - indemnities and liabilities - IP and licenses - confidentiality - any penalties in case of breach? - governing law - this is super important for a digital contract - applicable court

When it comes to contract drafting, don't fret if your base contract isn't the one used to kickstart discussions. In my experience, it's better to prepare a wishlist categorizing essentials, important but non-essential points, and discardables for discussion within the counterpart's text. Their disrt draft gives an initial insight into their diligence, knowledge, and areas of weakness.

Prepare a comprehensive draft of the contract outlining the terms and conditions. Ensure clarity, precision, and completeness in the language used. Include provisions addressing key aspects such as scope, deliverables, timelines, responsibilities, and dispute resolution.

it's crucial to build a structure that is practical and tailored to the client's needs. What works in the real world will also be effective in the digital environment. Clarity and feasibility are key to the success of the agreement.

Under this scenario, you lack the physical interaction, the visuals and feedback of positions advanced, so the preparation and execution phase are / have to be different. Control is exercised through advancing your position at the outset and quickly so it is clear to the Other Party (OP) and being transparent on minima outcomes / positions that cannot be compromised. Then you control the process as you have placed the anchor points to a successful outcome. Then, the OP will respond and you consider whether a successful outcome is possible. There may be compromisesYour arguments to defend your position must be clear to ensure process control. You can then determine if a deal is possible.

Engage in constructive dialogue with the other party to negotiate the terms of the contract. Seek common ground while advocating for your interests and objectives. Be prepared to compromise and explore win-win solutions where possible.

For negotiating terms in Digital contracting, it is vital to ensure that your terms aren't vague and that you are in a position to justify the drafted clauses. The mail exchanges between the parties should be absolutely clear as to put forth the intention of the parties to the negotiation. Since, it's a digital contracting process, the counsels need to be trained with the tactics and styles to negotiate digitally over various media in order to ensure efficient closure of contracts.