Questions to ask yourself:

Does the customer get a copy of its data back?

If so, what data? In what form? How? When?

At what (if any) extra cost? Does the customer have to pay first?

And, when using an AI tool to review contracts, what prompts are you giving it about transition-related terms?

Below are some variations on sample Transition Assistance clauses addressing these issues and more. They alternatively favor the cloud services provider or the customer, but still strive to offer relatively balanced terms. And, further below are ideas for prompting your AI, when using it to help review contracts for transition terms.

Sample Clauses

These samples are from The Tech Contracts Handbook: Cloud Computing Agreements, Software Licenses, and Other IT Contracts for Lawyers and Businesspeople (ABA Publishing 2021, 3^rd edition), authored by Tech Contract Academy founder David Tollen (the “Handbook”). For explanations, please see Part II(W) (Transition Assistance) of the Handbook.

Provider-Friendly Transition Assistance Clause

Reasonably promptly after either party’s notice of termination, Provider shall assist Customer with transition to an alternate vendor or to in-house operations pursuant to Provider’s then-standard transition policies; provided

(a) Provider has no good faith basis to believe that Customer is in breach of this Agreement and

(b) Customer pre-pays Provider’s standard fees for such services.

[Provider-friendly potential additions to manage scope creep, by limiting number of hours and/or types of tasks: “provided that Provider is not required to spend more than __ hours on Transition Assistance;” “Provider is only required to perform the following tasks as Transition Assistance: _______.”]

Provider has no obligation to provide such assistance or to retain any copies of Customer Data more than ____ days after termination of this Agreement.

Customer-Friendly Transition Assistance Clause

Provider shall provide Transition Assistance (as defined below) (1) starting ___ business days after either party’s notice of termination of this Agreement, or starting ____  days before termination where no notice is required, and (2) ending ____ days after termination of this Agreement, unless Customer issues written notice of an earlier end-date.

[Provider-friendly potential additions to manage scope creep, by limiting number of hours and/or types of tasks: “provided that Provider is not required to spend more than __ hours on Transition Assistance;” “Provider is only required to perform the following tasks as Transition Assistance: _______.”]

(a) “Transition Assistance” means that Provider shall:

(i) provide such assistance as Customer reasonably requests related to transition of Cloud Services to an alternate vendor or to in-house operations; and

(ii) furnish to Customer such copies of Customer Data as Customer may request in the following formats: ______.

(b) For Transition Assistance, Customer shall pay Provider ______________.

[More Customer-friendly: Might transition assistance already be covered within a contract’s existing fees? If so, modify Transition Assistance section to avoid unnecessarily overpaying.]

(c) Except as set forth in the next sentence, Provider may not refuse or delay Transition Assistance under any circumstances, including without limitation Customer’s material breach of this Agreement. Provider may withhold Transition Assistance until Customer makes advanced payment for such assistance if Customer is in material breach of this Agreement, provided Provider has not waived such breach and gives Customer written notice describing such breach in detail ___ or more business days before the start of the Transition Assistance period.

(d) Provider may not destroy Customer Data without Customer’s prior written consent until ____ days after the end of the Transition Assistance period.

For explanations, please see The Handbook (Part II(W)(Transition Assistance)).

Sample AI Prompts

Here are some ideas for prompting your AI tool, when using it to help review contracts for transition-related terms:

Eager to learn more? We invite you to attend Tech Contract Academy trainings about information technology contracts, such as:

• The Tech Contracts Master Class^™ #4, End-Game and Special Clauses: Disputes, Termination, Special Clauses, and OSS.
• Or better yet, the full four-course Master Class series.

Finally, did you miss our other recent blog about contract endings? Back to Basics: Contract Termination — At Whose “Convenience”? is available here. And our website includes a wealth of other complimentary articles, and sample clauses.

Notes:

Quick caveats and observations: Always think through and customize samples for the unique issues raised by your deal; no contract language can be airlifted in without care. We’re highlighting just certain clauses – you need to consider your contracts in their entirety, and how specific terms work together.

Where terms are capitalized, that assumes the contract defines them; when the sample clause shows a blank/underline, that’s a placeholder the parties need to fill in as appropriate for their deal. These clauses, like all on our website (https://www.techcontracts.com/forms/) are provided free of charge, but subject to our TERMS OF USE, which includes both disclaimers and license restrictions on reselling our forms. And, of course:

THIS ARTICLE IS NOT LEGAL ADVICE. IT IS GENERAL IN NATURE AND MAY NOT BE SUFFICIENT FOR A SPECIFIC CONTRACTUAL, TECHNOLOGICAL, OR LEGAL PROBLEM OR DISPUTE, AND IT IS NOT PROVIDED WITH ANY GUARANTEE, WARRANTY, OR REPRESENTATION. LEGAL SITUATIONS VARY, SO BEFORE ACTING ON ANY SUGGESTION IN THIS ARTICLE, YOU SHOULD CONSULT A QUALIFIED ATTORNEY REGARDING YOUR SPECIFIC MATTER OR NEED.

Thanks to Pixabay.com for the great, free stock images (at the start of this article, and the one below, to which we added our logo).

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