Boilerplate provisions can include such items as limitations of liability, indemnification, dispute resolution, breach/termination, jurisdiction and venue, modification, assignment, and force majeure (act of God) clauses. The success or failure of an agreement can depend on these provisions, and experienced lawyers know to review them carefully. Here are a few questions that are addressed by these provisions:
- If someone is harmed by the product or service, who is liable, and what limits apply?
- If one of the parties fails to protect the proprietary information of the other party or the personal data of consumers, how does the party at fault indemnify the other party?
- If there’s an actual or anticipated breach of the agreement, what happens? Is there an opportunity to cure the breach? What is the timeframe for termination? Can either or both parties terminate for any reason, or does there need to be cause for such termination? (Remember that the agreement’s price/fee can be tied to these answers).
- If there’s a dispute, is it resolved by mediation, arbitration, litigation, or some combination? What jurisdiction’s laws apply? Where is the dispute resolved?
- How can the agreement be changed? What happens if one of the companies merges, dissolves, or is acquired by another company?
- In the event that one of the parties can’t perform its obligations for reasons beyond its control, what is the timeframe and process for addressing this?
Every boilerplate provision needs to be carefully reviewed and drafted, so that it meets the current and future needs of the parties.