A Mutual NDA establishes reciprocal obligations to protect proprietary and confidential information. This playbook addresses definition scope, duration, and permitted disclosure exceptions.
Why This Matters: Misaligned payment structures can strain finances, delay closing, and leave value at risk if contingencies are unmet.
Negotiation strategy
If you're the Disclosing Party A:
Negotiate for a payment schedule that aligns with cash flow needs. Consider requesting an escrow account to secure final payments.
If you're the Disclosing Party B:
Ensure payment terms are clear and protect against non-payment. Propose holdbacks to ensure all conditions are met before final payment.
Essential elements
1
Payment Schedule
Defines timing of payments.
2
Earn-Outs
Contingent payments based on performance.
3
Payment Guarantees
Secures payments via escrow or credit.
Action framework
ACCEPT
Propose edits if payment terms do not align with strategic objectives or expose financial risk.
EDIT
Reject if terms are ambiguous or lack necessary guarantees.
ADD
Add clauses for missing payment schedules or guarantees.
PRO TIP
Always ensure payment terms are clear and include necessary guarantees to protect financial interests.
Example clauses
FAVORABLE
Structured Payment with Escrow
"The Buyer shall pay the Purchase Price in three installments: 30% upon signing, 40% upon delivery, and 30% upon acceptance. An escrow account shall be established to secure the final payment."
NEUTRAL
Standard Payment Terms
"The Purchase Price shall be paid in full upon delivery."
UNFAVORABLE
Ambiguous Payment Terms
"Payment terms to be determined at a later date."
Fallbacks
High-Risk Projects
In high-risk projects, ensure payment terms include additional guarantees such as performance bonds or insurance.
Cross-Border Transactions
Consider currency fluctuations and include clauses for currency conversion and payment in stable currencies.
Start-Up Acquisitions
For start-ups, include earn-outs based on revenue milestones to align incentives.
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