Boilerplate Clauses

How to Write a Solid Business Contract

boilerplate clauses

It is standard practice to include a number of general provisions in any legal document.

Given their common use and function they are often referred to as boilerplate clauses.

It is common practice to place these more fundamental legal clauses at the back of the document while ‘interpretation’ boilerplate is usually included at the front.

The boilerplate clauses are more general in nature than other clauses in the body of the contract and they normally relate to legalities of the contract rather than the particular transaction.

There can be a temptation for a client’s eyes to glaze over once they see such provisions. It is fair to say that sorting through such  complications  is the reason a lawyer was hired, but the importance of these clauses should not be underestimated.

Clients often demand short, succinct documents and they may see such provisions as ‘unnecessary”. Judicious use is required and the elemination of all such content would not be wise. Deleting any boilerplate clauses should be carefully considered with the risks and benefits being carefully weighed.

Some common boilerplate clauses are:

  • This is the entire agreement between the parties in relation to its subject matter and it supersedes all previous written or oral negotiations, promises and understandings.
  • No modification of the recorded terms will be binding unless it is in writing and signed by each party.
  • If a court considers any provision unlawful, invalid or unenforceable that will not affect the validity and enforceability of the remaining provisions.
  • If the document is signed in counterparts, each is deemed an original and together they constitute one instrument.
  • Each party must do all things required to implement the provisions of the document and to give effect to the parties’ stated intentions.
  • Each party is to pay its own legal costs related to preparing and signing the document.
  • Nothing in the document constitutes a partnership among the parties or authorises any party to act as agent or to bind another or contract in another’s name.
  • The assignment (changing ownership) of the rights and obligation are restricted unless written consent is given.
  • Successors (such a future owners) will be bound by the relevant undertakings and obligations, but they’ll also enjoy the same rights.
  • The other party must execute any documents required to give effect to the undertakings in the document.
  • The rights, powers and remedies set out in the document are in addition to any existing rights.
  • Failure to take action does not mean a party has consented to another party’s actions nor does it prevent a party from taking action later.
  • Rights will only be waived if that waiver is in writing.
  • A certain jurisdiction’s laws are selected to govern the document.
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About Mark Toohey

Mark Toohey is an experienced commercial lawyer who has worked with both major law firms and as general counsel in the media, telecommunications, software and IT industries. He has been a lawyer, company director, marketing director, company secretary and entrepreneur. Mark's commercial experience extends way beyond the theoretical. He has helped launch a number of start-up businesses and his hands on experience was gained from negotiating and documenting deals for a wide variety of business initiatives.