Boilerplate clauses, also known as standard, miscellaneous, or general clauses, are clauses that are found at the end of most legal documents. These provisions address a range of things such as what happens if a document is declared unenforceable, how disputes will be resolved, which laws govern the contract, and more.
General clauses may be considered secondary to the significant parts of the document because they use standardized language and are buried near the end of the agreement. However, they should not be mistaken as unimportant and parties should pay as much attention to them as they do to the main clauses such as payment.
Boilerplate clauses should not be mistaken as unimportant Click To TweetLearn more about common boilerplate clauses below, including some real examples and what they mean in a legal agreement.
Severability
What happens if part of your contract is invalid or illegal? A severability clause, also called a savings clause, states that the rest of a contract is still valid if part of it is considered illegal or unenforceable. Without a severability clause, the whole contract could be thrown out if one part of it is deemed invalid.
Severability Clause Example:
If any part of this agreement is declared unenforceable or invalid, the remainder of the agreement will continue to be valid and enforceable.
Jurisdiction or Governing Law
A jurisdiction or governing law clause declares which laws the agreement adheres to and where the lawsuit will be filed if disputes arise.
Jurisdiction Clause Example:
This agreement shall be governed by the laws of California.
Dispute Resolution
Every contract that involves two or more parties has a dispute resolution clause to indicate how disputes will be handled. The clause may specify the preferred form of dispute resolution such as negotiation, mediation, or arbitration (which has gained popularity because it is fast and informal).
Dispute Resolution Clause Example from a Separation Agreement:
In the event a dispute arises regarding the agreement, the Parties will try to resolve the matter through negotiation or mediation, prior to initiating a court action.
Force Majeure
A force majeure clause means that if the parties are unable to perform their contractual obligations due to circumstances beyond their control, their obligations may be temporarily suspended or completely excused. The clause may list external events, such as natural disasters, war, strikes, flood, etc. that could make contractual performance impossible.
Force Majeure Clause Example:
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached the agreement, for the delay in performance of this agreement when and to the extent such failure or delay is caused by acts beyond the party’s control.
Waiver
The waiver clause may be easily missed but it illustrates an important point. It means that if a party fails to enforce part of a contract, such as not charging late fees to a tenant who paid late rent, they can still do so in the future.
Waiver Clause Example:
Any waiver by the Landlord of the Tenant’s failure to perform any provision of this Lease is not a waiver of the Landlord’s right to subsequently insist on performance or pursue any remedy for that failure.
Amendment
An amendment clause describes how changes are made to an agreement. Typically it states that changes must be signed in writing by both parties.
Amendment Clause Example:
This Agreement cannot be modified in any way except in writing signed by all the parties to this Agreement.
Time is of the Essence
You may have seen, “Time is of the essence in this Agreement” at the end of a contract. Including this clause means that the timelines listed in the contract are absolutely critical (“of the essence”) and if a party fails to meet them, the other party is able to rescind the contract.
Assignment
An assignment clause clarifies whether parties can give their contractual rights or obligations to another party. The clause might include exceptions, such as if assignment can only be done with permission from the other party.
Assignment Clause Example:
This Agreement will not be assigned either in whole or in part by any Party without the written consent of the other Party.
Headings
The headings clause simply states that the bold headings within the document were placed there for organizational purposes. Usually, headings are an over-simplification of the content, and therefore should not affect the clause they are summarizing.
Headings Clause Example:
Headings are inserted for the convenience of the parties only and are not considered when interpreting this Agreement.
Counterparts
A counterparts clause is included when the parties will sign separate copies of the same document (if they can’t be in the same place at the same time). It is often written as, “This Agreement may be executed in counterparts.”
Notice
The notice clause clarifies how each party will deliver notice to each other. It can state the form of notice (written), how to deliver it (by person or mail), and when it is deemed received.
Notice Example Clause:
Any notices or delivery required here will be deemed completed when hand-delivered, delivered by agent, or seven days after being placed in the post, postage prepaid, to the Members at the addresses contained in this Agreement or as the Members may later designate in writing.
Entire Agreement
The entire agreement clause can be important when there are ongoing negotiations. It means that any previous understandings, including both oral and written agreements, are not included in the contract. If an entire agreement clause is in a contract, the parties should make sure that anything they want to be included in the deal is written in the agreement.
Entire Agreement Clause Example:
The Agreement constitutes the entire agreement and understanding between the Parties to this Agreement and supersedes all prior communications, contracts, or agreements between these Parties with respect to the subject matter addressed in this Agreement, whether oral or written.
Boilerplate Clauses: Standard but not Secondary
While standard in most corporate and commercial contracts, boilerplate clauses serve an important purpose in clarifying the relationship between the parties and spelling out any situations that otherwise wouldn’t be addressed in the operative section of the agreement.
Parties may be tempted to gloss over the details or avoid negotiating standard provisions, but it’s important to review the miscellaneous section for information that could impact you or the other party.
