변호사 이재욱의 미국법 이야기 (Attorney Lee's commentary about U.S. law)

BOILERPLATE PROVISIONS
Boilerplate provisions or clauses usually appear at the end of a contract. Sometimes they are
referred to as “Miscellaneous” provisions. Because they are at the end, people sometimes don’t
think they are important and don’t read or pay attention to them. Big mistake!
Boilerplate provisions are important because they affect your legal rights under the contract as
much as all other clauses. The purpose of boilerplate provisions is to save the parties and drafters
of contracts time with commonly used language. Boilerplate language is used to save time, but it
is nevertheless important to understand the meaning and effect of these provisions in order to
choose which ones are important for your particular contract. Although boilerplate provisions
may seem “standard,” they can still be tailored to meet your specific contracting requirements.
Every clause of every contract may be negotiated—even the boilerplate provisions.
You certainly don’t need all or even most of the boilerplate provisions in every contract. Pick
and choose and edit wisely.
IMPORTANT BOILERPLATE PROVISIONS FOR CONTRACTS
Miscellaneous
(a) Choice of Law. This Agreement, and any dispute arising from the
relationship between the parties to this Agreement, shall be governed by [e.g., California] law,
excluding any laws that direct the application of another jurisdiction’s laws.
(b) Attorney Fees Provision. In any litigation, arbitration, or other proceeding by
which one party either seeks to enforce its rights under this Agreement (whether in contract, tort,
or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing
party shall be awarded its reasonable attorney fees, and costs and expenses incurred.
(c) Notice. Any notices required or permitted to be given hereunder shall be
given in writing and shall be delivered (a) in person, (b) by certified mail, postage prepaid, return
receipt requested, (c) by facsimile, or (d) by a commercial overnight courier that guarantees next
day delivery and provides a receipt, and such notices shall be addressed as follows: If to ____________:
Attention:
Fax:
If to ____________:
Attention:
Fax:
or to such other address as either party may from time to time specify in writing to the other
party. Any notice shall be effective only upon delivery, which for any notice given by facsimile
shall mean notice which has been received by the party to whom it is sent as evidenced by
confirmation slip.
(d) Modification of Agreement. This Agreement may be supplemented,
amended, or modified only by the mutual agreement of the parties. No supplement, amendment,
or modification of this Agreement shall be binding unless it is in writing and signed by all
parties.
(e) Entire Agreement. This Agreement and all other agreements, exhibits, and
schedules referred to in this Agreement constitute(s) the final, complete, and exclusive statement
of the terms of the agreement between the parties pertaining to the subject matter of this
Agreement and supersedes all prior and contemporaneous understandings or agreements of the
parties. This Agreement may not be contradicted by evidence of any prior or contemporaneous
statements or agreements. No party has been induced to enter into this Agreement by, nor is any
party relying on, any representation, understanding, agreement, commitment or warranty outside
those expressly set forth in this Agreement.
(f) Severability of Agreement. If any term or provision of this Agreement is
determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal,
unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and
such provision shall not affect the legality, enforceability, or validity of the remainder of this
Agreement. If any provision or part thereof of this Agreement is stricken in accordance with the
provisions of this section, then this stricken provision shall be replaced, to the extent possible,
with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision
as is legally possible.
(g) Separate Writings and Exhibits. The following [e.g., agreements, exhibits,
schedules, or other separate writings] constitute a part of this Agreement and are incorporated
into this Agreement by this reference: [List separate writings by name and date]. Should any
inconsistency exist or arise between a provision of this Agreement and a provision of any
exhibit, schedule, or other incorporated writing, the provision of this Agreement shall prevail. (h) Time of the Essence. Time is of the essence in respect to all provisions of this
Agreement that specify a time for performance; provided, however, that the foregoing shall not
be construed to limit or deprive a party of the benefits of any grace or use period allowed in this
Agreement.
(i) Survival. Except as otherwise expressly provided in this Agreement,
representations, warranties, and covenants contained in this Agreement, or in any instrument,
certificate, exhibit, or other writing intended by the parties to be a part of this Agreement, shall
survive for ___ years after the date of this Agreement.
(j) Ambiguities. Each party and its counsel have participated fully in the review
and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in interpreting this Agreement. The language
in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any
party.
(k) Waiver. No waiver of a breach, failure of any condition, or any right or
remedy contained in or granted by the provisions of this Agreement shall be effective unless it is
in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of
any breach, failure, right, or remedy, whether or not similar, nor shall any waiver constitute a
continuing waiver unless the writing so specifies.
(l) Headings. The headings in this Agreement are included for convenience only
and shall neither affect the construction or interpretation of any provision in this Agreement nor
affect any of the rights or obligations of the parties to this Agreement.
(m) Necessary Acts, Further Assurances. The parties shall at their own cost and
expense execute and deliver such further documents and instruments and shall take such other
actions as may be reasonably required or appropriate to evidence or carry out the intent and
purposes of this Agreement.
(n) Execution. This Agreement may be executed in counterparts and by fax.
(o) Consent to Jurisdiction and Forum Selection. The parties hereto agree that all
actions or proceedings arising in connection with this Agreement shall be tried and litigated
exclusively in the State and Federal courts located in the County of , State of . The
aforementioned choice of venue is intended by the parties to be mandatory and not permissive in
nature, thereby precluding the possibility of litigation between the parties with respect to or
arising out of this Agreement in any jurisdiction other than that specified in this paragraph. Each
party hereby waives any right it may have to assert the doctrine of forum non conveniens or
similar doctrine or to object to venue with respect to any proceeding brought in accordance with
this paragraph, and stipulates that the State and Federal courts located in the County of
, State of shall have in personam jurisdiction and venue over
each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of
or related to this Agreement. Each party hereby authorizes and accepts service of process
sufficient for personal jurisdiction in any action against it as contemplated by this paragraph by
registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Agreement. Any final judgement rendered against a party in any
action or proceeding shall be conclusive as to the subject of such final judgement and may be
enforced in other jurisdictions in any manner provided by law.
(p) Jury Trial Waivers. To the fullest extent permitted by law, and as separately
bargained-for-consideration, each party hereby waives any right to trial by jury in any action,
suit, proceeding, or counterclaim of any kind arising out of or relating to this Agreement.
(q) Specific Performance. The parties acknowledge that it will be impossible to
measure in money the damage to them caused by any failure to comply with the covenants set
forth in Section , that each such covenant is material, and that in the event of any such failure,
the injured party will not have an adequate remedy at law or in damages. Therefore, the parties
consent to the issuance of an injunction or the enforcement of other equitable remedies against
them at the suit of the other, without bond or other security, to compel performance of all of the
terms of Section , and waive the defense of the availability of relief in damages.
(r) Representation on Authority of Parties/Signatories. Each person signing this
Agreement represents and warrants that he or she is duly authorized and has legal capacity to
execute and deliver this Agreement. Each party represents and warrants to the other that the
execution and delivery of the Agreement and the performance of such party’s obligations
hereunder have been duly authorized and that the Agreement is a valid and legal agreement
binding on such party and enforceable in accordance with its terms.
(s) Force Majeure. No party shall be liable for any failure to perform its
obligations in connection with any action described in this Agreement, if such failure results
from any act of God, riot, war, civil unrest, flood, earthquake, or other cause beyond such party’s
reasonable control (including any mechanical, electronic, or communications failure, but
excluding failure caused by a party’s financial condition or negligence).
(t) Assignment. Neither party shall voluntarily or by operation of law assign,
hypothecate, give, transfer, mortgage, sublet, license, or otherwise transfer or encumber all or
part of its rights, duties, or other interests in this Agreement or the proceeds thereof (collectively,
“Assignment’), without the other party’s prior written consent. Any attempt to make an
Assignment in violation of this provision shall be a material default under this Agreement and
any Assignment in violation of this provision shall be null and void.
[(u) Arbitration. Any controversy, claim or dispute arising out of or relating to
this Agreement, shall be settled by binding arbitration in [City], [State]. Such arbitration shall be
conducted in accordance with the then prevailing commercial arbitration rules of
JAMS/Endispute (“JAMS”), with the following exceptions if in conflict: (a) one arbitrator shall
be chosen by JAMS; (b) each party to the arbitration will pay its pro rata share of the expenses
and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by
the arbitrator; and (c) arbitration may proceed in the absence of any party if written notice
(pursuant to the JAMS’ rules and regulations) of the proceedings has been given to such party.
The parties agree to abide by all decisions and awards rendered in such proceedings. Such
decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered
in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. All such controversies, claims or disputes shall be settled in this manner in lieu
of any action at law or equity; [provided however, that nothing in this subsection shall be
construed as precluding the bringing an action for injunctive relief or other equitable relief]. The
arbitrator shall not have the right to award punitive damages or speculative damages to either
party and shall not have the power to amend this Agreement. The arbitrator shall be required to
follow applicable law. [IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES
NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER MATTER INVOLVING THE PARTIES HERETO.]]