Advanced Legal Writing

What are boilerplate terms?

 Boilerplate terms are a standard set of clauses that appear at the

end of every contract. They can be modified to be in favour of one
party over the other.
 If you have a standard form of contract which includes boilerplate
terms that can serve as your go-to document when you wish to
enter a contract with another party. It will help expedite the
contract negotiation process, protect your rights in every
transaction, and ensure there are no loopholes in the contract.
 The most important boilerplate terms:
 • Indemnity• Limitation of Liability• Confidentiality
 • Notice
 • Dispute Resolution• Governing Law• Jurisdiction
 • Amendment• Assignment• Force Majeure• Severability
 • Attorney Fees• Warranty• Conditions• Termination
 • Interpretation• Announcement/Publicity
 •Other Miscellaneous Provisions
 Indemnity Clause
 An indemnity clause is an important provision in a contract because
it transfers the risk of loss, damage, or liability from one party to the
other.It enables you to require the other party to pay for the damages
suffered by a third party.
 Therefore, when negotiating a contract, you must clarify who is
responsible for the loss or damage suffered by a third party. You
might want to be even more specific and set out who is to bear the
damages in case of third-party claims for IP infringement.
 How do you write an indemnity clause?

 Indemnity is one of the most negotiated provisions in business

contracts. The clause must outline:
 • the scope of indemnity, i.e. it should be limited to third-party claims;
 • a maximum cap on the damages;
 • definition of the indemnifiable acts;.the procedure for making claims,
hiring counsel, making payments,etc.
 2. Limitation of Liability
 The limitation of liability clause limits the number of damages one
party must pay the other party for breach of contract. It enables you
not only to put a maximum cap on the damages that can be
recovered but also exclude liability for certain events and
consequences.
 How do you write a Limitation of Liability clause?The terms of this
clause must be carefully drafted and negotiated due to its significant
impact on the business.
Limitation of Liability must outline:

 •the scope/applicability: the terms can be very broad to cover any

claim arising from the contract or narrow to cover only certain types
of claims arising from the contract;
 •a reasonable cap on the number of damages that can be recovered
in case of claim; and
 • the exclusions to limitation of liability such as
consequential losses
3. Confidentiality Clause
 Confidential information will inevitably be exchanged between you
and other parties while conducting business. Therefore, you must
bind the other parties with confidentiality obligations to ensure that
the exchange of confidential information does not lead to
unauthorized use/disclosure.
 The confidentiality clause prevents any unauthorized disclosure of
confidential information to a third party and restricts the use of
disclosed information to the purpose agreed to by the parties in the
contract. Simply put, it protects the information exchanged between
you and the other party during a business transaction from
unauthorized use/disclosure.
 Confidentiality Clause
 You have two ways to protect your confidential information: either
by executing a non-disclosure agreement or by including a
confidentiality clause along with other terms and conditions in the
contract.
 The latter choice is preferable when the disclosure of confidential
information is not significant.
 For instance, if you are selling a product to a customer, then the
exchange of confidential information is minimal, and a
confidentiality clause in your 'contract for sale' would suffice.
 How do you write a confidentiality clause?
 What include to confidentiality clause?
 A confidentiality clause identifies:
 •What constitutes confidential information?
 • What information is excluded from being confidential information?
 • In what circumstances can the confidential information be disclosed to a
third party?
 •What is the intended use of confidential information?
 •Duration of the confidentiality obligation
 • Confidentiality obligations of the parties
 •Remedies are available to both parties in case of breach of the
confidentiality provisions.
4. Dispute resolution
 A well-drafted dispute resolution clause sets out the mechanism for
the resolution of disputes between the parties to a contract.
 Generaily, this clause gets less focus compared to the commercial
terms of the contract like payments, the scope of service, etc.
 However, it is vital to consider the process for resolving disputes
between you and the other party despite it being unforeseeable in
the early stages of contract negotiation.
 How do you write a dispute resolution
clause?
 There are several options for dispute resolution, such as litigation, negotiation,
mediation, or arbitration. Each option has its advantages and disadvantages. You
can choose the option that suits your business needs.
 Here is a quick breakdown of each option. Litigation requires going to court for
resolution; however, it is expensive, time-consuming, and more public.
Negotiation and mediation are comparatively less contentious processes.
Arbitration is a popular choice as it is private, fast, and informal. It enables the
parties to stipulate details like the number of arbitrators, arbitration procedure,
the format of the award, the duration of the trial, etc. Unlike traditional litigation,
arbitration gives the parties more flexibility and control over the dispute
resolution process.
 5. Notice(s)
 The notice clause lays out the mechanism for giving and serving
notices by one party to the other.
 How do you write a Notice clause?A notice clause provides:
 • if the notice can be oral or written;
 In what cases and time the notice must be served
 • for the delivery mechanism, i.e. deliver personally, fax or
registered post or any other manner agreed by the parties; and
 •when the notice is deemed to be received
 6. Choice of Law/Governing Law Clause

 The governing clause reflects the parties' agreement on which law will govern
the contract in case of a dispute.
 Generally, it is wise to maintain consistency between the governing law and
jurisdiction clause, i.e. if the parties choose to submit disputes in Indian courts,
then they opt for the application of Indian laws to adjudicate the dispute.
 However, you can technically choose any governing law based on the location of
the parties or the type of transaction involved.How do you write a governing
law?
 The governing law is used to interpret the terms of the agreement by the court. it
must be expressly stated in the contract to avoid any issues later that may delay
the litigation proceeding.
 7. Jurisdiction clause
 The jurisdiction clause indicates which court will have the jurisdiction to resolve
disputes arising from or connected to the contract. It must be expressly written in
the contract. In the absence of a jurisdiction clause, the court will decide for you,
which results in additional fees and a delay in litigation proceedings.
 How do you write a jurisdiction clause?
 Generally, the jurisdiction clause can be:• Exclusive. This means that disputes
should be submitted to the exclusive jurisdiction of a particular court;
 •Non-exclusive. This means that disputes should be submitted to the courts of a
particular jurisdiction without prejudice to the right of the other party to commence
legal proceedings in the court of any other jurisdiction.
 8. Amendment
 A provision for an amendment is an essential element in every contract. it
enables the parties to modify the contract through the addition or deletion of
the terms and conditions.
 The changes, however, can be subjected to the consent of the other party to
ensure they are mutually agreed upon.
 How do you write an Amendment clause?
 The clause sets out the process for making a valid amendment to a contract.
Generally it requires that the proposed changes must be in written and signed
by both parties. This ensures that neither party can modify the terms of a
contract without the consent of the other party.
 9. Assignment
 An assignment clause states whether you can transfer your set of
contractual rights and obligations to a third party. Lets say Contractor
would like to use a help of sub-contractor.
 How do you write an assignment clause?
 Contracts generally provide for the assignment of contracts with the
consent of the other party. In this case, the contract must state: whether
the agreement can be assigned in whole or in part;
 • consent and notification requirements; and
 • conditions for assignment of duties, if any.
 If an assignment is not permitted, you can include a non-assignment
clause to prevent both parties from assigning the agreement in any
circumstance whatsoever.
 10. Force Majeure
 Force majeure clauses exempt a party from performing their contractual obligations due
to reasons beyond their control, such as natural disasters, floods, and other 'Acts of
God' The provision usually provides an exhaustive or non-exhaustive list of events that
qualify to be force majeure events.
 How do you write a force majeure clause?
 Typically, a force majeure clause stipulates the following:
 • definition of a force majeure event;
 • exemption of liability for the party unable to perform its contractual obligations
 • for issuing a notice of an occurrence and anticipated duration of the force majeure
event; and
 • action is taken to avoid or mitigate the event.
 11. Severability
 What happens in the circumstance where part of the agreement
becomes invalid or unenforceable?
 With the severability clause in the contract, if part of the agreement
becomes invalid, then the rest of the agreement remains unaffected
and continues to be valid.
 This clause, therefore, ensures that the terms of the agreement exist
independently of each other and that the invalid provision can be
severed from the rest of the agreement.
 How do you write a Severability Clause?

 The clause must reflect the intention of the parties regarding

whether the contract is severable or not. Further, it should clearly
state what is to happen if any clause of the contract is found to be
invalid, i.e. whether the remaining part of the contract will continue
to be enforceable or not.
 12. Attorney Fees
 Litigation can be a long and expensive affair for dispute resolution.
Many times, the cost of pursuing litigation exceeds the number of
damages that can be recovered. Therefore, a provision for attorney
fees becomes essential when negotiating a contract. It gives the
right to recover reasonable costs and attorney fees that you a party
incur in enforcing the contract.
 How do you write an attorney fee clause?
 How do you write an attorney fee clause?

 Simply put, the clause provides that the losing party must pay the attorney
fees and all costs incurred by the winning side to pursue the legal dispute.
 The cost can include filing, court, and serving summons fees, etc.The
attorney fee clause can be unilateral or mutual.
 If unilateral, it will allow only one party to recover the attorney fees
regardless of the party winning the dispute.
 However, a reciprocal provision allows the winning party to recover the
attorney fees from the losing party.
 13. Warranty Clause
 How do you write a warranty clause?
 The warranty clause states where the responsibilities lie for repair,
replacement, or refund for a breach of warranty.
 It should be carefully drafted and reviewed since it can result in liability
for the party in breach.
 If you are giving a warranty for your products, you must exclude your
liability for damages caused by normal wear and tear or negligence of the
other party; you should also reserve the right to investigate any claim for
breach of warranty.
 14. Conditions
 Traditionally, contracts have differentiated between terms of a contract which the courts
have described as "conditions" and those which the courts have described as "warranties".
Note that "condition" in this sense is different from a condition that has to be satisfied
before a contract exists or a particular obligation becomes enforceable. Warranty in this
sense is also different from the way it is used to describe a representation in the contract,
for example, that the vendor is the legal and beneficial owner of the goods to be sold.
 Conditions
 If one party to a contract is in breach of a term which is a condition,
this entitles the innocent party to choose not to perform his
obligations under the contract and claim damages for loss as a result
of the breach.
 Alternatively, the innocent party can decide to proceed with the
contract. If a party to a contract is in breach of a term which is a
warranty, the innocent party can only claim damages for breach of
warranty, but cannot treat himself as discharged from the contract.
 Terms, conditions and warranties
 Terms are sometimes described as "intermediate terms" (breach of
these may, depending on the nature and consequences of the breach,
entitle the innocent party to treat himself as discharged from the
contract) and "fundamental" terms (which go to the heart of the
contract, where the substance of the agreement is destroyed if the
term is not met).
 A representation (i.e. a statement made before the contract is entered
into) can become a term of the contract and can then be a
"condition", a"warranty" or an "intermediate-term".
 15. Termination
 This clause allows the parties to end a contract for a specified
reason such as breach of contract, force majeure, solvency, etc.
 How do you write a termination clause?
 Termination clauses have two essential parts:
 grounds of termination ie. describing the circumstances in which the
party is entitled to terminate a contract
 notice of termination i.e. a formal notice to the other party that the
contract will terminate on a certain date.
 16. Interpretation
 The interpretation clause sets out the rules for interpreting all the clauses of the
contract in the manner intended by the parties. It deals with the general
interpretation of the agreement.In absence of an interpretation clause, the
courts will interpret the contract based on the common-law principles and not
in the manner intended by the parties.
 How do you draft an Interpretation clause?
 In comparison to the other core clauses of the contract, the interpretation clause
is mostly standard and similar to commercial contracts. Generally, the clause
sets out the rules for construing the heading, references to statutory provisions,
gender, and other different terminologies in the contract to avoid any
ambiguity.
 17. Announcement/Publicity clause

 The announcement/publicity clause sets out rules on a press release,

announcements, and communication with the media about the contract.It
ensures control over public disclosure of any information relating to the
contract.
 How to draft an announcement/publicity clause?
 The clause expressly prohibits the parties from making any public
announcements relating to the contract without the consent of the other
party. The prohibition can be unilateral or mutual.