At its heart, a contract is nothing more than a series of promises. While agreements to perform and compensate are hallmarks of a contract, other lesser-acknowledged promises, known as representations and warranties, set standards for performance and allocate risk. In this article, we will discuss the indispensable warranties you should demand in any vendor agreement.
Warranties to Include in your Vendor Agreement
Authority to Enter into Contract. A vendor’s promise to provide goods that it may or may not own hardly serves your interests. Always secure the vendor’s warranty that it owns the materials it will be providing.
No Liens. Along the same lines, you want to receive goods with no strings attached. Your vendor should promise to provide you with goods that are free and clear of any liens, security interests, or other clouds on ownership.
No Litigation. Just as a lien can tarnish the value of a vendor’s goods, a lawsuit that concerns the goods can also affect the value and validity of what you’ll receive. Make sure the vendor has no knowledge or notice of any such active, pending, or threatened litigation.
Quality of Materials and Craftsmanship. Quality can vary widely, no matter the goods involved. You should know what quality product your payment will fetch and include minimum standards for raw materials and other technical specifications in the contract. You may also want to have the right to inspect a shipment before accepting it.
Time is of the Essence. Because you will be relying on the vendor’s goods to make your own profit, you need to be sure that you’ll have stock. Keep your vendors accountable by holding them to their delivery deadlines.
Accuracy of Financial Statements. Your seller should warrant that its financial statements fairly represent its financial condition. You want to be sure that the seller has the stability to provide you with your goods as promised, especially in a long-term vendor relationship.
Nondisclosure Agreement. Sometimes you’ll need to disclose sensitive or proprietary information to your vendor – a trade secret or a customer list, for example. For your sake and the sake of your customers, the vendor must be placed under a duty not to disclose that information.
Intellectual Property Ownership Statement. If your vendor will be handling any of your intellectual property (product design, branding, etc.), you need to unequivocally assert your ownership of those IP rights.
Long-Term Repair and Replacement Warranties. For warranties to repair or replace that extend more than four years, you must include specific language that the seller warrants the goods to be free from defect and suitable for use for the duration of the warranty; this is necessary to circumvent the UCC 2-725(2)’s statute of limitations for commercial goods.
Indemnification. Your seller should indemnify you for losses or damages that may be incurred because of a breach of any warranty in the contract. Also, be wary of seller-friendly “limitations on liability”: these provisions typically limit a buyer’s maximum recoverable damages to the price paid for the goods and may be disproportionate to their potential for harm if not produced, shipped, or handled correctly.
Don’t let a bad contract stop you or your business from moving forward. At Gertsburg Licata, we solve problems; our attorneys know business because they own businesses.
Max Julian is a partner at Gertsburg Licata in the litigation practice group. He may be reached at (216) 573-6000 or at [email protected].
Gertsburg Licata is a full-service, strategic growth advisory firm focusing on business transactions and litigation, M&A and executive talent solutions for start-up and middle-market enterprises. It is also the home of CoverMySix®, a unique, anti-litigation audit developed specifically for growing and middle-market companies.
This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction. If you have specific questions about your matter, please contact an attorney licensed to practice in your jurisdiction.
