General Contract and Boilerplate

This Practice Note discusses choice of law and choice of forum issues the parties should consider when drafting contracts. The choice of law clause, also known as a governing law clause, allows the contract parties to choose the substantive law of the appropriate state to apply to the contract. The choice of forum clause allows the contract parties to confer personal jurisdiction on the courts of the appropriate jurisdiction to adjudicate disputes under the contract.

A template briefing for in-house counsel to give business executives on key points to consider during contract negotiations.  Click here to download in Microsoft Word.

This Practice Note discusses the use of efforts clauses in commercial contracts, including the various definitions and standards that courts apply to best efforts, reasonable efforts and commercially reasonable efforts terms. Because of the lack of uniformity in the use and interpretation of efforts terms among attorneys, courts and under the Uniform Commercial Code (UCC), efforts clauses can lead to uncertainty in contract interpretation and performance. This Note provides practical tips to avoid this uncertainty.

This practice note considers the different forms that so-called "hybrid", "multi-tiered" (or "escalation") and "carve-out" dispute resolution clauses may take. Although a short form, standard arbitration or jurisdiction clause will suffice in the majority of contracts, certain complex projects may require more complicated dispute resolution provisions. This note focuses on the issues that may arise in using complex clauses and highlights the potential pitfalls a lawyer may face in drafting these types of clauses.

This Practice Note discusses how courts in various jurisdictions have defined negligence, gross negligence and willful misconduct. This Note also discusses how these three terms relate to each other and whether courts have found a substantive difference in the conduct described by each term.

This Note discusses representations, warranties, covenants, rights and conditions in commercial contracts. It describes each of these key contractual building blocks and how they function to achieve the intended goals of the contracting parties. This Note also includes drafting and negotiating tips.

This Practice Note provides a general overview of how legislators and courts have defined what constitutes a valid signature on contracts governed by the Statute of Frauds. This Note includes a discussion of the Uniform Commercial Code (UCC), the Uniform Electronic Transactions Act (UETA) and the Electronic Signatures in Global and National Commerce Act (E-SIGN).

This Practice Note discusses time of the essence clauses as they are used in commercial contracts and provides practical advice on how and when to use these clauses, including discussions on issues of enforceability and express and implied clauses.

This Practice Note discusses implied warranties under Article 2 of the Uniform Commercial Code (UCC) in a sale of goods transaction, including the implied warranties of merchantability and fitness for a particular purpose, and the implied warranties of title and against infringement. This Practice Note also contains an overview of effective disclaimers of these warranties.

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 generic form of termination agreement for use when parties to a commercial contract have mutually agreed to terminate the agreement. It includes an optional release of claims. This Standard Document has integrated notes with important explanations and drafting 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.

A boilerplate clause for an ad hoc arbitration in England and Wales in which the parties determine the rules most appropriate for the arbitration. The clause includes integrated drafting notes.

This Standard Clause provides that a lessor and lessee have entered into a finance lease, a special kind of lease defined in Uniform Commercial Code (UCC) Article 2A. This Standard Clause has integrated notes with important explanations and drafting tips.

A Standard Clause specifying the right of a buyer of goods under the Uniform Commercial Code (UCC) to accept or reject nonconforming or excess goods, including the buyer's remedies. This Standard Clause has integrated drafting notes with important explanations and drafting and negotiating tips.

A standard contract provision also known as an anti-assignment and anti-delegation provision or a non-assignment and non-delegation provision. This provision provides for a contractual limitation on the assignability of contractual rights and the delegation of contractual duties. This resource includes an explanation of novation as well as optional contract language that can be included in the assignment and delegation provision that creates a condition precedent to a novation. This standard clause has integrated drafting notes with important explanations and drafting tips.

A standard provision that allows the contract parties in a cross-border transaction to designate the language in which the contract will be written and interpreted. This resource addresses related issues such as translations, ratification, the language of negotiation and the language of dispute resolution. This Standard Clause has integrated drafting notes with important explanations and drafting tips.

This Standard Clause stipulates that the parties to the underlying agreement will comply with all applicable federal, state and local laws and regulations. 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 short definition of confidential information, standard exceptions to the definition of confidential information and common confidentiality obligations of a receiving party. This resource also includes language addressing the return or destruction of confidential information. These Standard Clauses have integrated notes with important explanations and drafting tips.

These Standard Clauses provide general corporate social responsibility (CSR) representations and warranties for use in a commercial sale of goods or services transaction. Under these Standard Clauses, the seller represents and warrants to the buyer that it has implemented and conducts its business in accordance with CSR values and policies. In addition, the seller represents and warrants that it is in compliance with and has required its subcontractors and suppliers to comply with CSR laws, rules and regulations. These Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.

These Standard Clauses are an example of delivery provisions in a transaction for the sale goods, with alternative language drafted in favor of both buyer and seller. These Standard Clauses have integrated drafting notes with important explanations and drafting and negotiating tips.

A Standard Clause stating the parties' intention to provide for equitable remedies for breach of contract in addition to or instead of monetary relief. 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.

Standard Clauses prohibiting the export of products, deliverables, software, technology and related information to any jurisdiction or country to which or any party to whom the export of these goods or deliverables is restricted by law or regulation. This resource also includes optional language setting out the obligations of a customer in a sale of goods or services transaction to comply with US export control regulations, including obtaining necessary export licenses and providing appropriate third-party notifications for the export of the goods or deliverables. These Standard Clauses have integrated notes with important explanations and drafting tips.

Standard Clause that contains a covenant by a buyer of goods or services to comply with US antiboycott law, including the antiboycott provisions of the Export Administration Act (enforced by the US Commerce Department) and the Ribicoff Amendment to the 1976 Tax Reform Act (codified in Section 999 of the Internal Revenue Code). The antiboycott laws prohibit or penalize any covered person, including US exporters, from taking action in support of an international boycott that is not sanctioned by the US government. The most prevalent example of an unsanctioned international boycott is the Arab League Boycott of Israel. This Standard Clause has integrated notes with important explanations and drafting tips.

A standard boilerplate clause commonly found in the miscellaneous section of a contract, in which the parties agree to cooperate with one another to take any actions not expressly specified in the agreement to carry out the intent of the agreement or implement its provisions. This Standard Clause has integrated drafting notes with important explanations and drafting tips.

A Standard Clause that can be used in a sale of goods agreement to require either party to obtain insurance, including general liability, workers' compensation and automobile liability insurance. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

Standard Clauses providing for the limitation of liability of a party in a sale of goods or services transaction. This resource addresses the exclusion of consequential damages, a cap on liability, as well as common exceptions and carve-outs to limitations of liability. These Standard Clauses have integrated notes with important explanations and drafting tips.

A Standard Clause allowing a buyer to obtain the best possible price on goods or services from a seller by requiring it to provide the buyer with the lowest price among all buyers in that market.  If the seller wants to offer a different buyer a lower price, it must also first offer that price to the buyer with the most favored customer clause (MFC). MFCs can implicate US antitrust laws, which analyze the enforceability of MFCs using a rule of reason analysis. This Standard Clause addresses the price of goods and has integrated drafting notes with important explanations and drafting tips.

Standard Clauses providing for the payment of goods or services in a commercial transaction. This resource also includes standard language addressing late payments (including interest charges), invoice disputes and set-off rights. These Standard Clauses have integrated notes with important explanations and drafting tips.

Standard Clause included in a sale or supply of goods agreement under which the buyer grants to the seller a purchase-money security interest (PMSI) in the goods to secure the buyer's obligation to pay the purchase price of the goods. 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 seller. This resource also includes standard language addressing the inclusion in price of other costs such as transportation, insurance and taxes. 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 customer. These Standard Clauses also include standard language addressing expenses, rate increases and taxes and have integrated notes with important explanations and drafting and negotiating tips.

This is a standard public announcements clause (also known as a publicity clause) used to control the dissemination of information regarding a commercial contract and its terms by preventing each party from issuing press releases, making any public announcements or communicating with the media without the consent of the other party. It includes common exceptions for legally required and other necessary disclosures. This Standard Clause has integrated drafting notes with important explanations and drafting 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 providing for default and termination of an agreement due to a company's bankruptcy, insolvency or financial condition. This Standard Clause has integrated notes with important explanations and drafting tips.

This Standard Clause reflects the intention of the parties that the agreement is of a certain financial nature, 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 allows an independent contractor sales representative to collect sales proceeds directly from the customer, deduct the sales representative's commission and forward the balance of the proceeds to the supplier.  This Standard Clause has integrated drafting notes with important explanations and drafting and negotiating 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 variable commission rate based on the sales representative's achievement of specified sales targets.  This Standard Clause has integrated drafting notes with important explanations and drafting and negotiating tips.

This Standard Clause specifies the procedures parties to a services agreement use to request and effectuate change orders. This Standard Clause includes a change order 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.

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.