Boilerplate Provisions in Contracts

Most contracts contain essential boilerplate or miscellaneous clauses that protect a business in the event of a lawsuit. An essential boilerplate for any commercial contract includes:

• Attorney’s fees provisions. If a contract dispute arises between the two parties, this clause ensures that the prevailing party recoups its attorney’s fees and related costs.
• Entire agreement. The entire agreement clause, which typically states that the contract is the final, complete, and total expression of the parties' agreement, helps prevent a party from claiming that there are other promises or terms to the deal that aren’t explicitly set forth in the written contract, such as oral representations, e-mails or memoranda, and other documents.
• Consent to jurisdiction and forum selection. This section establishes where any disputes between parties must be resolved. For example, if you're a San Francisco-based seller, and the buyer is in New York, you'll want the contract to say that all disputes may only be brought to and resolved in San Francisco, which would make resolution of the dispute more convenient and cheaper for you.
• Modification of agreement. To prevent someone from saying that the terms of the written agreement were verbally changed, the modification of agreement clause should state that the contract may only be modified in writing and signed by all parties.
• Ambiguities. The ambiguities section is important if you are the drafter of the contract. There's a general principle of law that says ambiguities in a contract are construed against the drafter of the contract. An “ambiguities” clause would state that any ambiguous language in the contract shall be interpreted as to its fair meaning, and not strictly for or against either party.
• Arbitration. In the event of a dispute between the parties, this clause requires that the dispute be resolved by binding arbitration, not litigation. Arbitration boilerplate must designate the binding nature of arbitration, the arbitrator, what arbitration rules must be followed, and where the arbitration will be held.
• Assignment. The assignment clause sets forth the rights or prohibitions on the assignment of the contract. Typically, a contract is non-assignable, but if both parties agree to allow assignment under certain circumstances, the parties may transfer their interests to someone else.