Can someone please share their site rental/camper participation/employment contract?
We've all seen this common request in various online forums. I totally get it. Lawyers are expensive and it’s tempting to just use a contract from another school or camp. They’re running retreats. I'm running retreats. They’re hiring staff. I'm hiring staff. What could go wrong??
The simplest answer is that a recycled contract might not hold up in court. Contract laws vary by state, and a provision that might be acceptable in one state might not be recognized in another. Moreover, an attorney writes a contract to meet the needs of a particular client in a particular situation. If a contract wasn’t created for your unique situation, it likely won’t meet your needs.
You also have no idea who drafted the initial agreement. Was it a competent attorney? And even if it was, how many other people modified the contract before it landed in your inbox? Think of the childhood game of Telephone: You say something to a friend, they repeat it to their friend, and so on. The inevitable outcome is that the final statement bears little resemblance to the original message. Something similar happens with reused contracts, except you have no idea where you are in the Telephone line.
An Example of the Problem
Here’s an example that I've seen in the employment context: A contract is initially drafted as an at-will employment agreement, which means the employer or employee can terminate employment at any time without stating a reason. At some point, usually long after the contract was drafted, a well-meaning manager adds two sentences to clarify the dates of employment: “You commit to working from June 15th to August 15th. You will not leave early without prior approval from management.”
That seemingly-logical addition changes the entire nature of the contract from an at-will agreement to a term agreement. In a term agreement, the employee can only be terminated for just cause. So when you terminate an under-performing employee, that employee can now challenge the termination and require you to justify the decision before a judge.
While this is one small example, there are many similar pitfalls to reusing contracts. What can you do to protect yourself? How can you make sure your contracts are binding, enforceable, and meet your needs?
A Checklist for Contracts
You likely enter into countless agreements. You rent space to outside groups, contract with parents on behalf of campers and students, hire dozens of employees, and engage numerous vendors. Contracts play an essential role in protecting your interests. They ensure that you and your counterparty know exactly what to do, and when written well, they foresee and address potential disputes. While every contract is different, and every situation requires a unique approach, certain key terms should appear in most of your contracts:
Who are the parties to the contract? Make sure the contract states exactly who is entering into the agreement and includes their addresses. If you coordinate with an individual who speaks on behalf of an organization, make sure the contract lists the organization rather than the individual as your counterparty.
What is the intent or purpose of the contract? Your contract should clearly describe the intent of both parties. It should explain the goal of the agreement. This helps show that a “meeting of the minds” took place between the parties.
What is the consideration? What are the responsibilities of each party? A valid contract must have "consideration," which means that each party gives something of value to the other party. A one-sided promise is not a legally binding contract. Your contract should explain exactly what’s being exchanged. It should include exactly how much is being paid, the payment schedule, the refund policy, and how payment should be made (cashier’s check, credit card, etc.).
What is the subject matter of the contract? The contract should explain exactly what service is being provided in exchange for payment. It should list every detail of what's included and what isn't to avoid any confusion in the event of a dispute.
When does the contract start and end? The contract should have a term. Where applicable, it should also have a provision explaining how the contract can be terminated prior to the stated end (e.g., "either party may terminate this agreement with 15 days written notice").
Has your counterparty assumed the inherent risks of the program? The contract should describe the inherent risks of your program. These are the risks that can't be mitigated despite your best efforts. For example, a hiker risks twisting an ankle while hiking on uneven terrain. Your counterparty should acknowledge these types of risks and agree to participate in the program despite them.
Are you exculpated? Is liability waived? The contract should include a provision that relieves you from liability for actions performed while attempting to meet your contractual duties. This provision should specifically release you from claims resulting from negligence, and in some states, it should list the potential negligence that might occur.
Are you indemnified? This provision ensures that the other party bears the financial risk if a third party sues you as a result of the contractual relationship. For example, if you rent your facility to an outside group, you want them to indemnify you in case one of their participants brings a lawsuit. Make sure this section includes indemnification for negligence.
Do you require the other party to name you as an additional insured on their policy? The contract can require the other party to add you to their insurance.
Does the agreement state the governing law and venue where a dispute might be resolved? Different states have different laws, and parties often have an interest in ensuring that their state’s laws govern any disputes arising from the agreement. Likewise, parties can state which court would hear a potential dispute.
Does the agreement have a merger/integration provision? This is a provision that ensures, regardless of any prior calls, emails or other conversations, the contract contains the entire agreement between the parties. This prevents your counterparty from pointing to an old email and claiming you agreed to its contents, when the exchange was superseded by months of negotiations.
Does the contract contain a modification clause? This is a clause saying that changes can only be made by written agreement between the parties. It ensures that your counterparty doesn't inaccurately claim that you made a verbal change to the written agreement.
Does the agreement have a severability clause? This means that the contract remains enforceable even if a court finds that one or more of its provisions are invalid.
Does the contract have a signature block for each party to sign and date the agreement? This section should confirm that the signatories have the authority to sign on behalf of their organizations. It should include their name, title, date, and signature.
If it's being signed digitally, is the signature validated? Unlike a unique handwritten signature, a digital signature is more tricky to verify -- it's hard to replicate a written signature but easy to type in someone else's name. Courts have held that entering a unique username and password to access and submit electronically-signed contracts is sufficient to validate a signature. So, for example, a contract signed on CampMinder would likely meet this requirement.