Most playbooks we see have a fallback for every clause. Far fewer have one a reviewer can use on a Tuesday afternoon, with the counterparty waiting, without calling the general counsel.
A fallback is a decision made in advance. It tells the reviewer how far they can move, on what terms, and who has already agreed to it. When it is written well, most negotiations end at the fallback and no one senior has to see them.
Why most fallbacks fail
The usual problem is not the position itself. It is that the fallback is written as a direction rather than as language. “Negotiate a reasonable cap” asks the reviewer to make the decision the playbook was meant to make for them.
The second problem is ownership. A fallback with no named approver gets escalated anyway, because no one is sure they are allowed to accept it.
If a reviewer has to call you to apply the fallback, it is not a fallback. It is a second negotiation.
Four tests for a fallback
It is written as clause language. The reviewer can paste it into the draft, or accept a counterparty edit that matches it.
It says what it trades. If the cap goes down, say what you get in return: a super cap, a shorter term or an exit right.
It names who can accept it. A person or a team, not “legal”. If procurement can accept it alone, say so.
It says where it stops. The walk-away position belongs with the fallback. Without it, every further ask becomes a judgment call.
Approvers in a Proviso playbook: who can accept each fallback, and where walk-away terms go.
An example from a SaaS MSA
Here is the limitation of liability clause from our customer-side SaaS MSA playbook.
Preferred | Liability capped at the greater of fees paid in the prior 24 months or $2 million, with data breach and IP claims uncapped. |
Fallback | A cap of 12 months of fees, with a separate cap of three times fees for data breach claims. |
Walk away | Any cap below 12 months of fees, or a cap that also limits confidentiality and data obligations. |
The fallback trades a lower general cap for a separate cap on data breach claims. Commercial legal can accept it. Anything below twelve months of fees goes to the general counsel.
Where to start
Pick the five clauses your team negotiates most. For most teams they are limitation of liability, indemnification, data protection, payment terms and governing law. Write those fallbacks as language, name an approver for each, and leave the rest of the playbook until those five hold.
If you would rather start from a draft, the Playbook library has positions for the agreements in-house teams see most.
