Deciphering Boilerplate

The term “boilerplate” originated in the early 1900s, referring to the thick, tough steel sheets used to build steam boilers.  Articles and advertisements were typically cast in steel and distributed to local newspapers throughout the country, ready for the printing press, and they became known as “boilerplates”.  The term has since been adopted by lawyers to describe provisions of a contract that protect a business in the event of a lawsuit, and are usually inserted as standard practice.   Typical boilerplate provisions include the following:

ATTORNEY’S FEES AND EXPENSES: In the event any suit or action is brought to interpret or enforce any of the terms, conditions, or covenants of this Agreement, the prevailing party shall be entitled to recover from the other party all reasonable attorneys’ fees, as well as experts’ fees, expenses, costs, and disbursements incurred before and at trial.

– What it means: If a contract dispute arises between the two parties, whoever winds up winning recoups its attorney’s fees and related costs.

ENTIRE AGREEMENT. This Agreement contains the entire agreement between the parties, and supersedes all prior agreements, understandings, and representations.

What it means: An entirety clause helps prevent a party from claiming that there are other terms to a deal, such as oral representations, letters, e-mails, and other documents, that were not included in the final, written contract.

JURISDICTION AND FORUM. This Agreement shall be governed and construed and interpreted in accordance with the internal substantive laws of the State of California.  Any dispute arising from or related to this Agreement shall be resolved in the Superior Court of California, County of San Diego.

– What it means: This provision establishes which state’s law is to be used when interpreting the agreement (jurisdiction), and where any disputes between parties must be resolved (forum).  In the event of a dispute, jurisdiction is more important than forum, because one state’s law may be more advantageous to a particular party, while forum is more a matter of convenience.

NO MODIFICATION: No modification of any of the provisions of this Agreement shall be binding unless made in writing and signed by authorized representatives of both parties.

– What it means: The purpose of this provision is to prevent someone from saying that the other party verbally agreed to change the terms of the written agreement.

ASSIGNMENT. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns.  Notwithstanding the foregoing, this Agreement and the Parties’ rights and obligations under this Agreement shall not be assigned by a party to another Person without the prior written consent of the other Parties.

– What it means: An assignment clause states whether the benefits or obligations of under a contract can be assigned to a third party. Typically, a contract is non-assignable, but if both parties agree to allow assignment under certain circumstances, the parties may transfer their interests to someone else.

COUNTERPARTS: This Agreement may be executed in counterparts, which together shall constitute one and the same instrument.  However, in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart.  A signature on a facsimile copy of this Agreement shall be valid, and the signed facsimile copy shall serve as an original for all purposes.

– What it means: A signed copy of the contract will be admissible in court to prove a disputed term of the agreement.   Traditionally, only original documents with “wet ink” signatures could serve as evidence in court.   By including this provision, a party can introduce a copy as evidence, but if the other has a signed original with different terms, the original will prevail.



Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.
Skip to content