What every Salesforce Partner should know

I hope this headline caught your attention. Today . . . this post is not about 4 letter words. But rather avoiding vague or ambiguous language (some with legal meaning) in contracts. Avoiding certain words or phrases in contract language makes for a more clear understanding of scope and ultimately better client alignment.
I have reviewed a great deal of contracts during my career and I’ve learned to avoid certain terms at all costs because of the potential for negative repercussions. This blog post should be considered general advice, not legal. Always speak to your legal counsel should you have concerns about contract language.
Don’t let this happen to you
Several years ago, a contract my company wrote contained the phrase, “including but not limited to” regarding data. Then a list followed, noting the objects in scope to migrate.
This was an org migration. The project lead said he told the client we would migrate only two years of data because the older data was inconsistent and often incorrect (this was not in the SOW). So the project progressed, the team migrated 2 years of data for the objects listed. The client was not pleased. So much so that they threatened to go to another ISV, if we didn’t “make it right”.
What this meant is we needed to restart the project from scratch, for free.
We had more data model work to do and the client also stated we needed to migrate chatter posts, and field history tracking for all objects except two. It was 3 months of free work, we didn’t have a legal basis to push back (never mind potentially losing the client).
Below are the words I always counsel ISVs to remove from contracts, there are many more. Generally speaking avoid using general acronyms, vague terms or the latest phrases being bandied about in online communities. Speak with your legal representative if you feel you must use them. Every state has their own unique spin and precedents on language.
What to avoid
AVOID THIS TERM OR PHRASE | COMMON INTERPRETATIONS OF TERM OR PHRASE | COMMON MISTAKES IN PHRASING | DO THIS INSTEAD |
---|---|---|---|
Ensure | Law Insider: to make sure or certain or to guarantee. | Vendor will ensure <enter text here> . . . to ensure maximum value to <enter client name>. . . | Avoid the word entirely. Be more specific in your language in what you will do AND what the client will do to support the item. |
Best efforts or All reasonable efforts | The Law Dictionary: 1.stating that a certain result won’t necessarily occur. Good faith promises that it will get as close as is humanly possible. 2. A high standard that if it isn’t met is excusable. The efforts put forth are all that can be done. | Vendor will put forth best efforts to <insert text here>” During the support period, Vendor will make all reasonable efforts to address issues. | Like the other phrases in this list “best efforts” is vague. Just for that reason alone, don’t use it. Be more specific about the efforts you will take, including what is out of scope. |
Including but not limited to | Incorporated Zone: the phrases including but not limited to or such as but not limited to are used to present a list of things to the reader while at the same not excluding other possibilities. | Out of the box Integrations include, but are not limited to <insert items here> During discovery, vendor will review all existing processes, which will include but is not limited to <insert list here> | Speak to your legal counsel, what I’ve counseled is to use the word “including”, and then get very specific. |
industry standards | HG.Org: In a lawsuit, the industry standard is usually used to establish negligence or failure to perform under a contract. If one performs at a level lower than the industry standard, the plaintiff may say that the defendant failed to meet the applicable standard, and should therefore be found liable. | Vendor will apply industry standards to the project approach including configuration, code and written documentation. | Rather than use this in a contract, either define what you will do, or state that discovery deliverables will include definitions regarding quality |
I hope this blog post has helped you think about contract language and avoid misinterpretations.
I’ll go back to my headline above. “Don’t say &%^@ in your contracts”, and sleep at night.