PUT IT IN WRITING!

Every Business and Every Individual

Needs A Good Contract ... or Two ... or More

by Joelle Steele

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Do you need a contract? You bet you do. Whether you're an individual or a business, you need to have a written contract for whatever transaction you are conducting. But don't write your own or buy one without having an attorney review it. I've been writing contracts for the horticultural industry since 1983, but my contract templates are always reviewed by an attorney before I sell them on my website, www.contractkingdom.com. But every state has its own set of laws, and you might need an additional paragraph ... or two, so paying for a quick consultation with your local attorney is a small price to pay for complete peace of mind when you buy a contract online from anyone.

A contract should not be intimidating. Its purpose is to ensure that both you and the party with whom you are conducting a transaction fully understand exactly what your individual and joint responsibilities are. You both need to know who is doing what, when and how it is supposed to be done, how much it is going to cost, and how it is going to be paid. A contract does not have to be written in the archaic legalese that baffles so many people. Plain old English works just as well, as long as it is written clearly and correctly.

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If you buy a contract, such as the ones I write and sell, it will probably be in a boilerplate-type of format. This means that it is a more or less standard contract that includes every kind of inevitability for the type of transaction that it covers. It will probably be quite thorough, but may be more thorough than you need, and that means you have to delete the services you don't offer or make minor adjustments to certain paragraphs. You may also have to add a few things, such as services you provide that are not already in the contract.

The best way to use a boilerplate-type contract is to go to the File Menu and click on "save as," give the file a new name, then use that newly saved contract for making the most basic changes that apply to all of your clients. For example, add any services you regularly provide that are not in the contract, and delete any services that you never provide. Put in your own hourly rate, your address, your name, etc. This now is your basic contract from which you will create all the others for each individual client. When you want to make a contract for a new client, you open up your version of the contract, go to the File Menu and click on "save as," and then name the contract file something like Contract-Maint-Harrison.doc, for a maintenance contract for the Harrison residence. Now you can use this newly-made contract to customize it specifically for the Harrison account.

Try not to get overwhelmed by the comprehensiveness of some boilerplate-type contracts, or you'll start thinking that you only need something very simple and basic. And maybe you do, but what is "simple and basic"? I have read a lot of contracts that were drawn up by small business owners and individuals, and I can assure you that some of them would never hold up in a court of law. They are written incorrectly, don't include paragraphs that are critical, have conflicting paragraphs, and often don't even make sense. It's a wonder anyone ever signs them in the first place.

But they do. And most of the time, it probably won't even matter. But what happens when something goes wrong? That contract can mean the difference between getting paid and not getting paid, or losing the shirt off your back. I sell more than 60 different contract templates. The following are some of the basic ones for the horticultural industry, and many companies and individuals should probably have a few of these on hand (either mine, or ones that you have drawn up by an attorney).

Trade Secrets Agreement. This is essential if you are concerned about the confidentiality of your service accounts or the possibility that your employees might solicit these accounts to start their own businesses. These agreements often include non-solicitation clauses but, beware, those clauses are not legally binding in many states where they are considered to infringe upon an employee's right to earn a living.

Employment Agreement. Like the Trade Secrets Agreement, an Employment Agreement is a necessity, especially for employees in key positions. These agreements, at the very least, spell out the job duties, salary, benefits, and the nature of the employment relationship. Get things straight from the start and you won't regret it.

Maintenance Contracts. If you are a landscape contractor, interior landscape company, aquatic pond company, etc., and you want to be fully protected, you need one of these. No two ways about it. If you operate with verbal agreements only, you can expect misunderstandings and the losses that ensue as a result of those disputes. I have only occasionally seen a maintenance contract that was written correctly and that did not have conflicting paragraphs. If ever a trip to the lawyer was called for, it is when you are putting a maintenance contract together or have purchased one (even from me).

Design and Installation Contracts. Do you have clauses in your contracts to cover the possibility of digging into a sewer line or ripping through a phone cable while planting a tree or hedge, installing an irrigation system, or digging a pond? What about when you install plants in an indoor environment that is against your better judgment? Do you even charge for the design? It takes time, you know. Even the smallest installations take time to plan and create something as seemingly simple as a plants and materials list. Put it all in writing — before you dig.

Plant Lease, Floral, and Short Term Rental Agreements. These can be tricky for any interior landscaper, nursery, or florist. Don't get caught with your pants down! Be sure that you are covered for whatever might happen, including sudden cancellations or questions about lease buyouts. If you rent plants or create floral arrangements for special events, you want to spell out exactly how many plants or arrangements will be required, when they need to be delivered and removed, and what happens when a catering employee empties the remains of the punch bowl into a specimen plant. Ouch!

Maintenance Accounts and Other Assets Sale and Acquisition Contract. What a mouthful, but if you're selling off your business piecemeal — and many horticultural service companies can't do any better than that — you will need something in writing to seal the deal. This is just the kind of contract to help you do that.

General Partnership Agreement. When you decide to take on a partner(s), you need to make sure you have everything in writing so that there are no misunderstandings along the way. This contract spells out exactly what your duties are to each other and to the partnership business.

Snow Removal and De-Icing Contract. Many landscape companies turn to snow removal in the winter months, and this contract outlines the many kinds of snow removal and de-icing issues that should be addressed so that you can safely perform this type of seasonal business which also carries with it a substantial degree of risk from potential slip-and-fall accidents. Protect yourself!

As you can see, you — and your business — need to be protected. So, isn't it time you started taking action and put things in writing today?

This article last updated: 09/26/2009.