Boilerplate
agency for service
interest & late payment
where a contracting party is domiciled abroad, this clause appoints an agent located in E&W jurisdiction so should a dispute arise under the contract, documents can be served to that agent instead, saving time/cost/effective service risk.
agreements to agree
Prima facie, A2A (or A2negotiate) are not legally binding due to uncertainty. This clause can be used to reflect the parties position on A2A/A2N (1) maximise enforceability of matters to be agreed at a future date i.e. 'to act in good faith', 'agree X that are fair and equitable', 'act reasonably' (2) minimised any A2A being interpreted.
announcements
how parties wish to control the manner in and extent to which information about the transaction is released to the public.
arbitration
where disputes are to be settled via arbitration
assignment
controlling the assignment of any benefits under a contract to a third party
background, definitions & interpretation
Bribery Act 2011
purpose of the Act was to address concerns raised by the OECD about the adequacy of the UK's anti-corruption laws; no distinction between bribery in the public & private spheres.
change in law
primarily deals with the allocation of risk resulting from changes in law e.g. changes in performance, cost implications and may be used as a mechanism for dealing with particular types of changes.
condition(s) precedent
deals with a condition(s) that has to be met before a contract, or certain parts of it, comes into effect.
confidentiality
costs & expenses
counterparts & duplicates
Often a party is required to produce an original of a contract for stamp duty or evidential purposes; can be (1)counterparts (i.e. each party keeps one half of the executed contract) or (2)duplicates (i.e. parties execute multiple copies of a contract).
remedies cumulative & exhaustive
makes certain where parties want (1) the innocent party to a breach to be entitled to seek remedy both under its common law rights in addition to its express rights under a contract (terminate under an express right and sue for damages under common law right where the contract is silent) or (2) where parties only want sole remedies in the event of a particular breach e.g. service level breach should to be service credits only.
dispute resolution
litigation, arbitration, expert determination, ADR (mediation, conciliation etc) or combination of the above.
entire agreement
used to remove the risk of any pre-contractual representations being interpreted as forming part of the contract.
escalation of disputes
used to introduce a 'tiered' dispute resolution clause.
execution blocks
expert determination
export control & sanctions
force majeure
plugs the gap left by the doctrine of frustration
further assurance
ensures that a party will be bound to execute any additional documents and/or to do any further things required to perfect the transaction or matter which is the subject of the contract.
governing law
which law will determine the rights and obligations of the parties under the contract (subject to exceptions)
hardship
hardship clause is a mechanism for dealing with the situation where unexpected events or circumstances make a party’s performance of a contract much more onerous than what was contemplated at the outset.
inadequacy of damages
used where it may be more important to the innocent party that the other party is required to perform, or is stopped from breaching, that obligation than that the innocent party has a damages claim for losses arising from the breach.
indemnities
used to stipulate the primary liabilities of either party to a contract. Indemnities can operate as an effective risk allocation mechanism; setting out which of the parties to a transaction should bear the risk of the specified losses/liabilities.
independent contractors
makes it clear that each party is entering into the contract as principal and not as the agent of or for the benefit of another person.
insurance
If a contract allocates risk and liability, one party may choose or be required to cover the liability allocated to it by insurance. Insurance also protects the party to whom the liability is owed so that if the party accepting the liability is unable to discharge its liability, the insurance will step in.
joint & several liability
(1) joint liability is a join promise by two (or more) parties to do the same thing) - performance by one will discharge the others (2) several two (or more) parties make a separate promise to do something and each is only liable for its own obligation - discharge by one does not discharge another.
jurdisdiction
determines the jurisdictional court in which any dispute from the contract arises.
liquidated damages
agreement in advance in the contract that a certain sum will be payable by the breaching party to the other party on the occurrence of a specified breach.
mediation
Modern Slavery Act 2015
this can be used to insert into supply chain contracts to facilitate the management of both reputational risk and the compiling of their reports.
no partnership or agency
Notice
purpose is to avoid an unintended partnership or agency relationship between the parties arising.
price & payment
included to cover one or more of the following; price, price variation, service credits, making payment, disputed invoices, late payment, set off, payments on termination, the eurozone and tax
retention of title
The purpose of an ROT clause is to protect the supplier from the risk of the buyer defaulting on payment.
severance
The purpose of a severance clause is to enable such contract terms to be removed or “severed” from the contract (e.g. illegal, void or unenforceable), leaving the remainder of the contract intact.
subcontracting
termination & the consequences
third party rights
variation
waiver
commonly used to describe one party clearly and unequivocally granting a concession (or, as it is often referred to in legal commentaries, forbearance) to the other party by not insisting on compliance with a contractual term - usually drafted to equate to a 'no waiver'!