We have all seen onerous and unfair language in contracts, waivers, releases, invoices, disclaimers, disclosures, notices.  Sometimes it is in the dreaded “fine print.”  Sometimes it is in large bolded, underlined print.  When one party challenges such language, we often hear the response:  This is “industry standard.”

Don’t agree to proposed language based on an opposing party’s assertion that it is standard or typical language. 

A vendor or contractor may claim that their contract is “industry standard”.  Instead of negotiating what is or is not “industry standard,” focus on the nature and scope of the services, the contract price, the risk involved and the parties’ ability to control/manage risk.  These issues are far more meaningful than whether or not a term is “industry standard.”

The important question is whether the proposed language is reasonable in THIS situation.  For example, a proposed warranty or disclaimer might be reasonable on a one-off small painting project.  That same warranty and disclaimer language might be completely unreasonable for a larger project or project that involves greater risk just as plumbing or electrical work.  The key is to focus on what is reasonable for this project and this agreement.

Overbroad release language is another example “industry standard language.”  A release of “any and all claims” may be reasonable in some circumstances, but not in all.  For example, an association may be in a dispute with its developer regarding parking spaces or unpaid assessments. If this association agrees to a settlement that includes a release of “any and all claims,” the Association runs the risk of waiving claims that have nothing to do with either the parking spaces or unpaid assessments. By releasing “any and all claims” they could have released claims against the developer for anything and everything that might go wrong in the future. It would be a real disaster and injustice if a court were to find that the Association was barred from recovery of thousands, hundreds of thousands or even millions of dollars to repair construction defects because the Association previously released their developer from “any and all claims” to settle a minor parking issue.

The attorneys at Barker Martin can help make sure your associations understand the legal consequences of a proposed agreement, before they sign. Feel free to call if you have additional needs or questions.