Guides · Commercial Contracts Guide · Chapter 5 of 6
Negotiating without a legal team
Last reviewed 14 August 2026
How to prioritise, what to concede, how to handle a counterparty's standard form, and when to escalate.
In short
Effective contract negotiation is triage. Identify the three or four clauses that could actually hurt this business on this deal, argue those with reasons, and accept the rest. Marking up forty clauses signals inexperience and slows the deal.
Most people negotiating commercial contracts in Australia are not lawyers. They are founders, operations managers and account leads working against a deadline, holding a counterparty's standard form.
Triage before you mark up
Ask what could realistically go wrong on this engagement, and how bad it could be. For a low-value, low-risk supply, the answer might be nothing and the right move is to sign. For a contract that represents a material share of revenue, or exposes you to third-party claims, focus on:
- Liability cap quantum and whether indemnities sit inside it.
- Indemnity triggers and scope.
- Payment terms and suspension rights.
- Termination for convenience — and notice period.
- IP ownership of anything you want to reuse.
- Exclusivity, restraints and change-of-control consents.
How to ask
Position changes commercially, not legally. "Our professional indemnity policy is $10 million, so we can't accept an uncapped indemnity — we can offer a cap at $10 million with the usual fraud and personal injury carve-outs" moves a negotiation. "Our lawyers don't like clause 14" does not. Offer the alternative wording rather than deleting a clause and leaving a gap.
Trades worth making
- Accept a longer payment period in exchange for interest and suspension rights.
- Accept a broad IP assignment in exchange for a licence back to reuse generic tools and methodologies.
- Accept termination for convenience in exchange for a notice period, payment for work performed and committed costs.
- Accept a higher liability cap in exchange for excluding consequential loss and adding a twelve-month claim time bar.
Handling a counterparty's standard form
If the other side will not negotiate their paper, three fallbacks are available: a short side letter varying named clauses; a special conditions schedule attached to the front of the contract with precedence over the base terms; or, at minimum, an internal record of the accepted risks approved by whoever owns that risk. Signing without any of these is a decision, and it should be a conscious one.
Remember also that where you are the small business party and the contract is standard form, the unfair contract terms regime may already void the most one-sided clauses — but relying on that after a dispute has started is a far worse position than negotiating it out beforehand.
Records to keep
Keep the executed version, every schedule and annexure it refers to, the correspondence recording key concessions, and a diary note of renewal, notice and review dates. A contract register — counterparty, value, expiry, notice period, cap, assignment restriction — takes an afternoon to build and prevents most auto-renewal and missed-notice problems.
When to escalate
Get advice when the contract is material to revenue, when liability is uncapped or indemnities are broad, when the counterparty is offshore, when IP or personal data is involved, or when the arrangement will be hard to exit. A short fixed-fee review at that point is usually cheaper than a single day of a dispute.
Where this fits
For businesses signing contracts constantly, our Fractional General Counsel engagement gives you a lawyer on call for exactly these decisions, at a fixed monthly fee.
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