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Have you heard of the term contract boilerplate? Even if you haven’t, it’s included in almost every contract. So you are familiar with it, even if you don’t know exactly what it is.

When I first started practicing law, I read The Sense of Style by Stephen Pinker*, which is part style guide, part how to be a better writer guide.

In it, there is an accurate (and humorous) description of contract boilerplate by Adam Freedman:

What distinguishes legal boilerplate is its combination of archaic terminology and frenzied verbosity, as though it were written by a medieval scribe on crack.

Today because don’t want you to sign a contract you don’t understand, I’m going to translate what that medieval scribe was trying to say when he wrote those common boilerplate clauses.

What is contract boilerplate?

In simple terms, contract boilerplate is the standard contract terms at the end of most contracts. And 99% of the time, these sections are not open for negotiation. They are take-it-or-leave-it sections.

These often include things like:

• anything that is not specifically included in the written contract isn’t part of the agreement (AKA the entire agreement clause)
• who must pay attorney’s fees in case of a dispute (AKA attorney’s fees clause)
• if you must do mediation or arbitration (AKA dispute resolution clause)
• which states laws apply and where disputes must be handled (AKA choice of law and jurisdiction clauses)
• if you give a pass for a slip-up once, you don’t permanently have to give a pass (AKA the waiver clause)
• if something is illegal/unenforceable in the contract only that thing will get removed (AKA severability clause)

Why is contract boilerplate important?

You might wish you could eliminate contract boilerplate from your contract, but lawyers have kept this archaic, outdated language in almost every contract for decades for two reasons.

The first reason is that we have court cases to know exactly how courts will read these standard sections. We, as attorneys, know exactly what they mean, and so to best protect our clients, we use the tried and true language.

The second reason we keep them in there is that they protect both you and those you work with.

For example, several years ago one of my clients had a book publishing deal to translate her books into Simplified Chinese and for those books to be sold in China.

The contract required that royalties be paid on a certain date, but one year that date fell within the Chinese New Year holidays. Since banks were closed the publisher couldn’t pay my client on that date. So we permitted them to move the payment to a later date.

However, the waiver boilerplate section meant that just because we did it this time, didn’t mean we gave them permission in the future to move the payment. It was a one-time waiver.

What contract boilerplate means…

This is the section of the blog post you came here for. 

The place where I break down each of the sections of a contract.

Want the short version? Watch the video below.

Want the long version? Keep reading below where I break down each of these clauses and give you some example contract language.

Psst…this video is a clip taken from a 43-minute video that goes along with my Podcast Consultant contract template. Each contract template I sell comes with one of these walking you section by section through the contract, so you not only know how to customize it but explain any questions those you work with have. You also get access to a place to leave questions in case you get stuck! See all our contract templates here.

Entire Agreement Clause

First up is the entire agreement clause.

This clause is also called the “four corners” clause and is a good way to remember the purpose of this clause.

And that’s to limit your contract to exactly what’s written in the contract. 

This clause says that our agreement is what we’ve put here. Nothing we talked about in person, over Zoom, or in emails is part of this agreement. Our contract is only what’s written on these pages.

Here are two sample entire agreement clauses:

• Entire Agreement. This Agreement sets forth and constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof. This Agreement supersedes any and all prior agreements, negotiations, correspondence, undertakings, promises, covenants, arrangements, communications, representations, and warranties, whether oral or written of any party to this Agreement.
• ENTIRE AGREEMENT. This Agreement represents the entire Agreement of the Parties. Any amendment of this Agreement shall be effective only if it is in writing and signed by the Parties.

Attorneys Fees Clause

Next, we have the attorneys’ fees clause.

This section outlines how and when the other party needs to pay one party’s attorney fees.

For example, say you are a service provider and you deliver your services, but your client doesn’t pay. And despite your best attempts to collect, a payment isn’t forthcoming. So you have to sue to collect what is owed to you. This clause can say that if you win in court, not only does your client need to pay you what they owe you, but also your attorneys’ fees.

Sometimes this clause is written to only provide payment of attorney fees to one side or the other. 

For example,

• ATTORNEYS’ FEES. In the event any action is commenced to enforce, interpret the terms or conditions of this Agreement, or prevent breach thereof, Consultant shall, in addition to any costs or other relief, be entitled to recover its attorneys’ fees and costs.

Other times, this clause is written to provide payment to either party.

For example,

• Attorneys Fees. The non-prevailing party in any dispute under this Agreement shall pay all costs and expenses, including expert witness fees and attorneys’ fees, incurred by the prevailing party in resolving such dispute.

When written the first way, it’s usually because when one side doesn’t uphold their end of the agreement, the other side is put in a far worse position. 

For example, this way is fairly common in service provider contracts where if the service provider delivers and the client doesn’t pay, they shouldn’t have to pay their attorney to force the client to pay. (In effect, throwing whatever money the client owes them to the attorneys so they can collect payment.)

Governing Law Clause

Back when most of us worked with local businesses, this section wasn’t as important. But as our work has become more global, this contract section has become more and more important.

And that’s because this section determines which state’s laws apply and if there is a dispute what courts are allowed to resolve this dispute.

So if you are working with a remote client on the other side of the country, you want to state that the laws of your state apply and that disputes must be resolved near you.

Here are two examples of this clause:

• Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, without reference to any conflicts of law provisions. Each party hereby submits to the exclusive jurisdiction of, and waives any venue or other objection against, any federal court sitting in the State of California, or any California state court in any legal proceeding arising out of or relating to this Contract. Each party agrees that all claims and matters may be heard and determined in any such court and each party waives any right to object to such filing on venue, forum non conveniens or similar grounds.
• GOVERNING LAW This agreement will be governed by and construed in accordance with the laws of the state of California. And the parties agree that any dispute arising from or relating to this Agreement shall be resolved in a state or federal court in Sacramento, California.

Waiver Clause

The fourth contract boilerplate clause is a waiver clause.

When we operate a business, we know that there are times we need to give the other side a pass. We can’t draw a line in the sand over everything. So we allow the other side to do something not 100% as the contract is written to preserve the relationship.

Sometimes it’s because what they are asking isn’t a big deal. Maybe the client wants to deliver two days late (and you had other plans those days), so you permit them to deliver two days late because you wouldn’t work on it until then anyway.

This contract clause says that just because you don’t enforce something one time, you don’t have to give them a pass in the future (or that this section of the contract no longer applies).

Here’s an example:

• WAIVER. Any failure by one or both parties to enforce a provision of this Agreement shall not constitute a waiver of any other portion or provision of this agreement.

Severability Clause

The final contract boilerplate section I want to cover is the severability clause.

It says if, at any point in time, a certain section of this contract is invalid, enforceable, or illegal the rest of the contract is still in effect. 

Sometimes that happens because laws change.

A common “mistake” I see that makes a section of a contract unenforceable is putting too high of a percentage into your contract for the interest charged for late payment. (The laws that cap this are called usury laws. This article has a map that shows the allowed percentage in different states.)

Severability clauses look like this:

• SEVERABILITY. In the event that any part of this Agreement is found to be invalid or unenforceable, the remainder of this Agreement shall remain valid and enforceable.

Your next step

I hope you now have a better understanding of what that contract boilerplate section is designed to do.