TechSoup legal expert, DeAnna Poon, guided nonprofits through the often complex process of navigating contracts and agreements, providing the tools and knowledge needed to successfully protect your organization's interests.

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KEY CONSIDERATIONS FOR CONTRACTS
What to look for and how to draft contracts for your nonprofit organization
1. Disclaimer
This session is for information purposes only and is not intended as legal advice. Always consult
competent legal counsel to learn how relevant laws apply to your organization. TechSoup makes no
representations or warranties about the accuracy or suitability of ny information presented in the
webinar or any related materials (such as handouts, presentation documents and recordings). The
views expressed by speakers or other third parties are those of the speaker or third-party and not,
necessarily, of TechSoup. Review of this document does not create an attorney-client relationship.
2. “Acting Out” Exercise
For many contracts, you will consider four things, and find solutions to address the issues.
a. What do you know about your contractor* that may impact a contract?
*The term “contractor” here refers to the other party in a contract. It may be an individual, a
company, a nonprofit organization, a consulting firm, government agency, etc.
i. Attitude.
Are they a willing partner? Unhappy about what they’re doing? How will their attitude or
mood impact the agreement?
Also, is the contractor actively involved in drafting or reviewing the agreement? They will
likely be more open to signing an agreement where they’ve participated in crafting the
terms, rather than a “take it or leave it.”
ii. Technology.
Do they have the requisite technology and skill to review the agreement the way you’re
providing it? Do they have access to a printer? A computer?
iii. Legal Ability.
Are they attorneys? Do they have legal counsel? Are they a business or an individual?
b. What typically happens when you have projects or services covered by the
contract?
For example, do you often have your contact person change? Include a clause that they will
notify you with an updated point of contact if your regular person changes.
c. Can this be a template? Are there special cases?
• Will you have this type of agreement frequently?
• Are there one or two special cases to consider?
Templates can be great where you’re doing the same type of work repeatedly. They are easier
to fill in, and you may only need to seek legal counsel to draft the template, rather than
seeking counsel every time you execute that type of agreement. Make sure you understand

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what parts of your template you can freely change, and which parts need closer review or
even attorney review.
d. How will you get buy-in from your contractor?
Buy-in from your contractor is critical. Ideally you won’t have someone providing a service to
you (or receiving one) only because they’re legally obligated. You want them to WANT the
relationship. Make sure you’re providing the information they need to understand the value of
what you’re asking for.
You can include information for buy-in within the contract, but it isn’t needed there.
Explanatory text can make a contract much longer and overwhelming. It could go in an
informational sheet, website, social media posts, etc.
3. Common Contract Terminology
These are ALL clauses where legal counsel would be a valuable resource, at minimum to provide
general boilerplate for you to use. It is also useful to check your insurance policy. Some will not
cover indemnification or have other limits.
a. Data Privacy and GDPR.
Data privacy clauses explain what the parties mean by “data”, who can access what, and what
they can do with it. The US lacks a comprehensive data privacy framework, resulting in a
patchwork of laws that vary state-to-state. See https://iapp.org/resources/topics/us-state-
privacy/.
If the agreement is between a US and EU entity, GDPR (https://gdpr.eu/what-is-gdpr/) will
apply. This EU law has very strict compliance requirements for the sharing of a person’s
information.
b. Hold Harmless.
This clause releases Party A from liability for what happens to Party B (unless it is an
intentional act). Hold Harmless clauses can be for the person providing or receiving the
service.Here are a couple examples:
Providing the service – You provide a venue space. You may want a clause so that the renter
holds you harmless if someone is injured on your property.
Receiving the service – A contractor is replacing your roof. You may want a clause so that you
are held harmless if someone is injured in the course of replacing your roof.
c. Indemnity.
For indemnity, Party A protects Party B from (financial) loss. It may be limited to Party A’s
intentional or illegal acts and can be one way or mutual. This comes into play with third
parties.
Here’s an example. You hire someone to produce a promotional video for you. The agreement
says that the producer will indemnify you. Someone sues you, saying the video includes
footage of them without their permission. The producer is responsible for the litigation and
potential liability for this third party claim.

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d. Limitation of Liability.
Here, Party A limits its liability to Party B. It could be limited by dollar amount, the type of
actions for which Party A is liable, or the type of damages Party B can collect. Some
examples:
• For dollar amount, an agreement may say that the contractor is only liable for up to
$10,000.
• Alternately, the contractor could only liable for the amount paid, or due to be paid, on the
agreement.
• For actions, the contractor is only liable for intentional or illegal acts.
• For damage types, the contractor is not liable for consequential damages.
You can be specific when limiting liability. You may be better off with language that list things
where you don’t accept liability, such as for lost profits, attorney fees, and lost wages.
e. Termination for Default.
Termination for Default gives Party A the ability to terminate because Party B failed to do
something material that was required (a breach) and didn’t cure the breach after Party A gave
them notice and a reasonable time to fix it. Considerations:
• Is the contract for more than one service, such as picking up trash and recyclables?
Maybe have the option to cancel only the recycle part of the contract, because there are
no problems with the trash pickup.
• Can either party terminate for default? This clause should be mutual, but some clauses
only include it for the party receiving the goods or services.
f. Termination for Convenience.
Party A can terminate for ANY reason, regardless of Party B’s actions. Considerations:
• The “it’s not you, it’s me” termination. You can terminate for any reason. These clauses
can be used when Party B’s behavior isn’t quite default, but it isn’t great. It could be that
Party A ran out of money, decided to go in a different direction, chose to cancel the
project, or pretty much any other reason.
• It may be the same or a longer timeframe than notice for a termination for default. It may
or may not be mutual.
Can you have both? Yes. If your situation would qualify as either one, what you want to do
after the contract is over will dictate which one you want to use. Do you want to preserve the
relationship? Will you want to sue them for damages?
4. Essential Contract Information
a. Consideration and Payment Schedule.
“Consideration” is what you’re giving in exchange for receiving the service. It is often money,
but it could be something else of value, such as exchanging services or goods. You MUST
have consideration to make it a binding agreement.

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• Is it clear how much will be paid?
• Is there a cap on how much can be paid?
• Is there “up to” language where it is needed?
• Pay should be based on the amount of work done, not the amount of time elapsed.
b. Duties and Deliverables.
• Is it clear what’s expected of each party?
• Is it clear what the contractor is providing and the recipient is receiving?
• Does timeframe matter? If so, are timed milestones clearly established?
c. Notice.
• How do you want to receive notice?
• What is your backup plan in case your or their personnel changes?
d. Term and Survival.
• Are there clear start and end times for the agreement?
• Does it makes sense for the term to automatically renew.
• Are there terms that should survive the end of the agreement? This frequently includes
terms around data protection and liability provisions.
e. Data Protection, Confidentiality, and Intellectual Property.
• Do the data privacy clauses explain what the parties mean by “data”, who can access
what, and what they can do with it?
• Do you identify what information is confidential?
• If data is being created, are there intellectual property provisions to clarify who will own
new creations?
f. Overall:
i. Does it work?
Has the agreement been reviewed by every affected department – the team doing or
receiving the work, accounting, legal, risk management? Does it work for everyone?
ii. Can I do everything I say I can?
Have I run this by every person or department that is obligated under this agreement?
Check your insurance policy. Can you agree to what’s required for insurance provisions?
Indemnity?
This is another place to think about breach. What circumstances might make you or the

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other party breach? What protections are in the contract (or within your organization) to
ensure that doesn’t happen?
iii. Are they doing everything I want them to?
Do you want them to protect you through insurance, indemnity, etc.?
iv. Am I allowed to sign this?
Does your nonprofit have a written (or unwritten) policy making clear who is allowed to
sign for the nonprofit? You want to make sure that the person signing the agreement has
the authority to do so.
5. Contract Review Checklist
a. Are the relevant attachments included?
Does the agreement include all the attachments it references? Are all the attachments
referenced in the agreement?
b. Does anything conflict?
For example, does it say there will be two invoices, but then only reference one payment?
c. Is the math correct?
Are the totals for the goods and services correct?
d. Are each party’s responsibilities clearly identified?
Look for passive voice like “Staff will be trained.” Who will train them?
e. Is the language clear?
Search for “they” and “it” and make sure the entity is clear. For example, “TechSoup shall
inform Contractor of the insurance limits and they shall secure the policy.” Who is meant by
“they”?
f. Is there anything you don’t understand?
Ask for clarification. Don’t assume it is ok.
6. Resources
a. TechSoup Product Catalog
Donated and discount software and hardware, including DocuSign and Adobe:
https://www.techsoup.org/get-product-donations.
b. TechSoup Digital Assessment Tool
A tool to identify your needs and find the best resources to meet them:
https://assessment.techsoup.org/.
c. National Council of Nonprofits
The National Council of Nonprofits provides guidance on seeking pro bono (free legal)

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assistance including helpful links: https://www.councilofnonprofits.org/tools-resources/pro-
bono-and-skilled-volunteers.