General Contract and Boilerplate

This Practice Note examines US law relating to the transferability of commercial contracts, including a party's legal ability to assign its rights and delegate its performance obligations under a contract that is silent on transferability, and the construction and enforceability of contractual anti-assignment and anti-delegation clauses. It also includes applications to different types of commercial contracts and transactions, and discusses key drafting considerations for anti-assignment and anti-delegation provisions.

This Practice Note discusses the law of consignment in the US.  It provides a general overview of consignments and then focuses on consignments under the Uniform Commercial Code (UCC), including the concepts of "sale or return" and "sale on approval" under Article 2 as well as  consignments in the context of secured transactions under Article 9. This Practice Note also includes a discussion of a "true consignment" and related terms as well as a section on the role of consignments in supplier-managed inventory programs.

This Note discusses the application of equitable remedies under US contract law. Courts generally favor legal remedies for breach of contract, but they have the discretion to award equitable relief if legal damages are inadequate to compensate the aggrieved party for its losses. This Note covers types of equitable remedies, limitations and defenses, the use of contractual provisions expressly addressing the availability of equitable relief and the availability of equitable remedies under major commercial contract types.

This Practice Note discusses force majeure clauses, which allow the contract parties to allocate the risk of certain force majeure events such as acts of God, hurricanes, earthquakes and other natural disasters, terrorism, government acts, embargos, labor strikes and lock-outs, and other events beyond the control of the parties.

Practice Note discussing indemnification and defense provisions in commercial contracts. This Note discusses key issues including statutory and common law barriers to enforcement, defining the scope of the indemnity, limiting liability and alternatives to indemnification. This resource includes drafting and negotiating tips. 

This Note discusses the interplay between representations, warranties, covenants, rights and conditions in commercial contracts. It describes the principal ways in which these key contractual building blocks work together to form principal operative and remedial provisions, focusing on indemnification and related remedial clauses. This Note includes drafting and negotiating tips.

This Note discusses common risk allocation mechanisms in commercial contracts. This Note describes how parties can allocate risk through indemnification, limitations on liability, termination rights, force majeure, contractual remedies, UCC product warranties, insurance coverage, payment terms and guaranties. This resource includes drafting and negotiating tips. 

A note providing links to institutional standard recommended arbitration clauses, with integrated drafting notes.

This Practice Note discusses the treatment of express warranties under Article 2 of the Uniform Commercial Code (UCC).  It explains how express warranties are created under Article 2. It also contains pro-buyer considerations about how to include express warranties in a written agreement and conversely, pro-seller considerations about how to limit and disclaim them.

Standard Document to be used when a party assigns contractual rights and delegates contractual duties to another party. This form contains provisions to incorporate an assumption of the delegated obligations, as well as an optional novation into the assignment agreement. It also includes common representations and warranties, indemnification provisions and refund of escrow deposits found in assignment and assumption agreements. This Standard Document has integrated notes with important explanations and drafting tips.

This is a sample notice used by one party to an agreement to notify the other party that the other party has breached the agreement. The notifying party uses this notice to initiate a termination-related cure period. This Standard Document has integrated notes with important explanations and drafting tips.

A form letter that the seller (consignor) uses when it sells goods to a buyer (consignee) for resale (a consignment transaction) to notify the consignee's creditors who have a security interest in the consignee's inventory that the consignor has a purchase-money security interest (PMSI) in the consigned goods. This Standard Document has integrated drafting notes with important explanations and drafting tips.

This is a sample change order form that parties to a services agreement use to mutually change the service provider's obligations under the agreement. This Standard Document has integrated notes with important explanations and drafting tips.

This is a generic form of waiver for use in waiving compliance with one or more commercial contract provisions. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

A clause containing language parties may insert into a corporate or commercial agreement to expressly prohibit class arbitration or the consolidation of claims brought by more than one plaintiff. This Standard Clause has integrated notes with important explanations and drafting tips.

This Standard Clause contains provisions for parties wishing to place goods on consignment for resale. This Standard Clause can be used either as an addendum to a seller's terms and conditions of sale or as part of a supply of goods agreement or a supplier managed inventory agreement. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

This Standard Clause provides that a lessee is required to make rental payments under all circumstances, including if the lessor breaches the equipment lease or the equipment is damaged or unfit. This Standard Clause has integrated notes with important explanations and drafting tips.

This Standard Clause contains a Uniform Commercial Code (UCC) Article 2A finance lessor's product warranty disclaimers. This Standard Clause has integrated notes with important explanations and drafting tips.

Standard Clause that specifies the conditions for modifying and for terminating a contract. This resource includes a no-oral-agreements (NOA) provision. This Standard Clause has integrated notes with important explanations and drafting tips.

Standard Clause that allows the contract parties to choose the courts of the appropriate jurisdiction to adjudicate disputes under the contract. This Standard Clause has integrated notes with important explanations and drafting tips.

Choice of law clause, also known as a governing law clause, that allows the contract parties in an interstate transaction to choose the substantive law of the appropriate state to apply to the contract. The contract parties should review the choice of law clause together with the choice of forum clause, as courts look to both provisions to determine whether to adjudicate the claim, and what law to apply. This Standard Clause has integrated notes with important explanations and drafting tips.

Standard Clauses setting out the confidentiality obligations of a party in a sale of goods or services transaction. These Standard Clauses include a detailed definition of confidential information, standard exceptions to the definition of confidential information, common confidentiality obligations of a receiving party, and language addressing disclosures of information as required by law. This resource also includes optional language addressing the return or destruction of confidential information, as well as equitible remedies for any breach of confidentiality. These Standard Clauses have integrated notes with important explanations and drafting tips.

A Standard Clause designed to limit the period of time in which a party can file contractual claims against another contract party.

A Standard Clause stating the parties' intention to express rights and remedies set out in the agreement are cumulative and in addition to any implied rights or remedies provided by law or equity, and not in substitution for them. If the parties intend that certain express remedies like liquidated damages constitute the exclusive or sole remedy for a particular breach, the parties can include the alternative exclusive remedy carve-out. This Standard Clause has integrated notes with important explanations and drafting tips.

A Standard Clause, also known as a "merger" or "integration" clause, that integrates all previous negotiations, representations, warranties and agreements into the contract, indicating a final agreement on terms and provisions. This Standard Clause signals an understanding between the parties that the terms reflect the whole agreement and courts should exclude evidence outside of the contract itself if a dispute arises. This Standard Clause has integrated drafting notes with important explanations and drafting tips.

A Standard Clause that sets out the basic terms and conditions by which the contract parties agree to hold a portion of the contract consideration such as the purchase price with a third-party escrow agent to satisfy the seller's indemnification, warranty or other contract obligations. This Standard Clause has integrated drafting notes with important explanations and drafting and negotiating tips.

Standard Clauses related to compliance with economic or trade sanctions to be included by the seller of goods, services or technology in a sales contract.  Economic and trade sanctions are administered by the US Treasury Office of Foreign Assets Control (OFAC), and broadly prohibit most transactions between US persons and entities or persons located in an embargoed country.  These include comprehensive sanctions against countries like Cuba, Iran and Sudan, and limited embargoes against countries like North Korea, Syria and Burma. The US also imposes economic sanctions against certain Specially Designated Nationals (SDN). SDN are entities or individuals identified by OFAC based on their participation in targeted activities such as international drug trafficking and terrorism. These Standard Clauses have integrated notes with important explanations and drafting tips.

Standard Clause that allows the contract parties to allocate the risk of certain force majeure events such as Acts of God, hurricanes, earthquakes and other natural disasters, terrorism, government acts, embargos, labor strikes and lock-outs, and other events beyond the control of the parties. This clause excuses the party impacted by the force majeure event from performing its obligations. This Standard Clause has integrated notes with important explanations and drafting tips.

These Standard Clauses provide for unilateral or mutual indemnification and defense in a sale of goods or services transaction.  This resource includes language on the duty to compensate and defend for losses incurred.  In addition, this resource includes provisions addressing common exceptions to indemnification, notice of indemnification, control of defense, a liability basket, a liability cap, indemnification as a sole remedy, and indemnity payment adjustments for taxes and insurance payments. These Standard Clauses have integrated notes with important explanations and drafting tips.

This Standard Clause allows parties to a contract to choose the obligation level for any co-obligors: joint, joint and several or several. This Standard Clause has integrated notes with important explanations and drafting tips.

Standard Clause requiring the breaching party to pay a pre-determined amount to the non-breaching party as exclusive compensation for the breaching party's failure to perform a specific task or comply with a particular obligation.  Parties typically negotiate a liquidated damages provision into a sale of goods or other agreement where it may be difficult to estimate the damages that a non-breaching party may suffer if a specific term is breached.  This Standard Clause has integrated notes with important explanations and drafting tips.

A Standard Clause stating the parties' intention to restrict the ability to obtain equitable relief and limit remedies for breach of contract to monetary damages. This Standard Clause has integrated notes with important explanations and drafting tips.

This Standard Clause provides that a buyer must use a commercial letter of credit as payment for goods in a commercial transaction. This Standard Clause has integrated notes with important explanations and drafting tips.

These Standard Clauses provide for the pricing of goods in a commercial transaction for the sale of goods, drafted in favor of the buyer.  This resource also includes standard language addressing the inclusion in price of other costs such as transportation, insurance and taxes.  It contains examples of price adjustment clauses typical in longer term supply agreements and a most favored customer clause, also known as a most favored nations clause. These Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.

These Standard Clauses provide for pricing of services (commonly referred to as fees) in an agreement for the provision of services, drafted from the perpective of the service provider. This resource also includes standard language addressing expenses, rate increases and taxes. These Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.

This Standard Clause is an example of a limited product warranty clause in a sale of goods agreement. This resource also includes standard warranty disclaimer language addressing the exclusion of all other warranties, whether express or implied by law. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

A Standard Clause to be used in a requirements contract for the sale of goods to specify the percentage of its requirements of the goods that the buyer must purchase exclusively from the seller and that the seller must sell to the buyer. This Standard Clause has integrated drafting notes with important explanations and drafting and negotiating tips.

A Standard Clause, sometimes referred to as a savings clause, that severs invalid, illegal or unenforceable provisions, while preserving the validity of the remainder of the contract. This Standard Clause has integrated notes with important explanations and drafting tips.

A Standard Clause, sometimes also referred to as a binding effect clause, stating the parties' intention that their respective successors and assigns be entitled to the benefits of, and subject to the obligations created by, the agreement. This Standard Clause has integrated notes with important explanations and drafting tips.

Clause that allows the contract parties to specify that non-parties do not benefit from and cannot enforce the contract, with the option to carve out an exception for certain third-party beneficiaries. This Standard Clause has integrated notes with important explanations and drafting tips.

This Standard Clause provides that all parties to the agreement have waived their right to a trial by jury if there is any dispute arising out of or relating to the agreement or the transaction. This Standard Clause has integrated notes with important explanations and drafting tips.

A Standard Clause to be used in a contract for the sale of goods to specify when title to the goods passes from the seller to the buyer. This Standard Clause has integrated drafting notes with important explanations and drafting and negotiating tips.

The London Court of International Arbitration's (LCIA) standard recommended arbitration clauses, with integrated drafting notes.

This Standard Clause reflects the intention of the parties that the agreement is a personal services contract, allowing it to be terminated by the non-debtor counterparty and unassignable by the debtor in bankruptcy. This Standard Clause has integrated notes with important explanations and drafting tips.

A Standard Clause to be used in a sales representative agreement for the sale of goods under which the supplier, distributor, reseller or other seller of goods agrees to pay an independent contractor sales representative a flat commission rate based either on the specified percentage of the net sales price or net invoice amount of goods sold, or a fixed fee for each unit of goods sold.  This Standard Clause has integrated drafting notes with important explanations and drafting and negotiating tips.

This Standard Clause specifies the parties' rights and procedural obligations to change the service provider's work and related rights under a services agreement. The change order clause in this Standard Clause is a change directive provision under which a party, typically the customer, mandates changes to the service provider's work. This Standard Clause includes a dispute resolution procedure and has integrated notes with important explanations and drafting and negotiating tips.

This Standard Clause specifies the service provider's rights and the parties' procedural obligations to change the contract sum or completion dates under a services agreement in response to a specified event (excusable event), such as customer-caused delay, a force majeure event or a change in law. This Standard Clause includes a dispute resolution procedure and has integrated notes with important explanations and drafting and negotiating tips.

A sample ad hoc clause providing for arbitration in the US.

A standard clause approved for the purposes of Directive 95/46/EC for the transfer of personal data to processors in third countries that do not ensure an adequate level of protection as set out in the Annex to Commission Decision 2010/87/EU. This Standard document has been adapted by PLC IPIT & Communications from the original text available at the EUR-Lex website with the permission of the Publications Office of the European Union. © European Communities, eur-lex.europa.eu/  Only European Union legislation printed in the paper edition of the Official Journal of the European Union is deemed authentic.

This Checklist presents issues to consider when drafting and negotiating remedial provisions in a commercial contract to ensure that indemnification and other contractual remedies and remedy-related provisions interact in a consistent and compatible manner. It also includes issues to consider if the parties designate indemnification as the exclusive (or sole) remedy for contractual breaches and non-compliance.

An article reviewing the recent developments in the on-going reform of the Brussels Regulation, and assessing the core proposals and the next stages in the reform process.

A consideration of the practical aspects of being involved in an international arbitration.

The decision of where to locate an international arbitration can have major implications for the outcome. This first of a two-part feature examines the factors to consider when making that decision and provides an overview of the approaches to arbitration practice and the attitudes of arbitrators in ten key jurisdictions.

The Massachusetts Appeals Court held in Shahin v. I.E.S. Inc. that a contractual limitations provision was invalid and unenforceable because it did not permit the discovery rule to operate for claims unknown and unknowable at the end of the contractual time limit.

In Smartmatic International Corp. v. Dominion Voting Systems International Corp., the Delaware Court of Chancery denied cross motions for summary judgment on the meaning of the term "in the United States" in a patent license agreement.

The International Association for Contract and Commercial Management (IACCM) has published its 2012 Study on Most Frequently Negotiated Deal Terms.

A PLC Commercial "Legal FAQs" article on whether there are any standard clauses  that might protect the parties to a cross-border contract if the euro collapses, or if one or more countries exit the euro. free access

Publication of an article on the proposals to reform the Brussels Regulation, by Sarah Garvey of Allen & Overy LLP.

The European Commission has adopted a report and green paper on Council Regulation (EC) No 44/2001 on jurisdiction, recognition and enforcement of judgments in civil and commercial matters (the Brussels Regulation).

On 4 July 2008, Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) was published in the Official Journal (OJ 2008 L177/6). Rome I will apply from 17 December 2009 to all contracts concluded after that date.For further information on Rome I, see PLC Legal update, Rome I Regulation on law applicable to contractual obligations: adopted by EU Council and PLC Practice note, Rome I and Rome II: a summary.

A drafting note providing guidance on the standard contractual clauses adopted by the European Commission for the transfer of personal data from data controllers in the EU to data processors in jurisdictions outside the European Economic Area (EEA) (Decision 2010/87/EU). The standard contractual clauses are one of several mechanisms approved by the European Commission to ensure adequate safeguards for personal data transferred from the EU to countries which the European Commission has not found to offer adequate protection for personal data. This drafting note is an unofficial document which has been prepared by PLC IPIT & Communications without input from the European Commission, the UK Information Commissioner or any other EU or UK data protection authority.

In Wah (Aka Alan Tang) and another v Grant Thornton International Ltd and others [2012] EWHC 3198 (Ch), the court considered a jurisdictional challenge to an arbitral award under section 67 of the Arbitration Act 1996, on the basis that certain contractual ADR processes had not been followed before commencing arbitration.

An update on Habas Sinai Ve Tibbi Gazlar Isthisal Endustri AS v Sometal SAL [2010] EWHC 29 (Comm), in which the court considered the incorporation of an arbitration clause.

An update on DHL GBS (UK) Ltd v Fallimento Finmatica SpA [2009] EWHC 291 (Comm), in which the ECJ decision in West Tankers was considered in the context of an application to stay an appeal against registration of an Italian judgment granted in breach of a London arbitration clause.

In ACE Capital Ltd and others v CMS Energy Corporation and others [2008] EWHC 1843 (Comm) the court considered how to interpret a dispute resolution clause containing both an arbitration agreement, under the LCIA rules, and a "service of suit" clause, providing for claims to be submitted to the US courts. In reliance on that clause, CMS had commenced proceedings against ACE in the courts of Michigan. ACE applied to the English court for a permanent injunction restraining CMS from continuing those proceedings. In granting the injunction, Clarke J held that the service of suit clause did not exclude a money claim from arbitration. He took into consideration various decisions of the US courts on this point, having concluded that such decisions were of persuasive effect. He concluded, for various reasons, including a "strong legal policy on both sides of the Atlantic in favour of arbitration", that the service of suit clause did not exclude the operation of the arbitration clause.