CLAUSES

Below are all the sample terms found in the clause boxes of The Tech Contracts Handbook, 3rd Edition. They’re organized into: I. PRIME CLAUSES (licenses, promises of service, payment), II. GENERAL CLAUSES (indemnity, data security, limit of liability, and the rest of the meat of tech contracts), and III. BOILERPLATE (typical back-of contract material, but more important than you think). 

These clauses are provided free of charge, including for use in your contracts and your clients’ contracts. But they’re subject to our TERMS OF USE & PRIVACY,which includes both disclaimers and license restrictions on reselling the forms.

• Prime Clauses
• General Clauses
• Boilerplate Clauses
• Appendices: clauses regarding open source software and online policies

Prime Clauses

• I-A: Simple End-User License, On-Premise Software
  • 1- Reproduction and Use
    • Simple End User Reproduction and Use
  • 2- End-User Conditions and Restrictions
    • End User Conditions and Restrictions

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  I-B: Simple Distribution Software License

  • 1- Distribution
    • Standard Distribution Rights
  • 2- Distribution Conditions and Restrictions
    • Standard Distribution Conditions and Restrictions

• ---

  I-C: Software Licenses in General

  • 1- Copyright License Rights
    • Copyright Licenses (with Minimal Scope Terms)
  • 2- License Scope Terms
    • Copyright License with Scope Terms
  • 3- License Conditions and Restrictions
    • License Conditions and Restrictions

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  I-D: Subscription for Cloud Services

  • 1- Cloud Services Subscriptions
    • Cloud Services Subscriptions
  • 2- Cloud Services Scope Terms
    • Cloud Services Scope Terms
  • 3- Cloud Resale
    • SaaS Resale: Provider Hosted

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  I-E: Promise of Professional Services

  • Promise of Professional Services
  • 1- Defining the Professional Service
    • Description of Professional Services
  • 2- Statement of Work Forms and Procedures
    • Statement of Work Procedures
    • Statement of Work Form
  • 3- Change Orders
    • Change Order Procedures

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  I-F: Transfer of IP Ownership: Assignment and Work-for-Hire

  • 1- Limited Transfer of IP Ownership
    • Ownership of IP Rights in Deliverables: Limited Transfer
  • 2- Broad Transfer of IP Ownership
    • Ownership of IP Rights in Work Product: Broad Transfer
  • 3- Transfers from the Provider’s Employees and Contractors
    • Staff Ownership Transfers

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  I-G: Payment

  • 1- Payment by Customer
    • Customers’ Fees
  • 2- Payment by Distributors and Resellers
    • Distributors’ and Resellers’ Payments
  • 3- Sales Tax and Other Duties
    • Sales Taxes and Similar Duties
  • 4- Due Dates and Fee Disputes
    • Invoices and Disputed Payments

Boilerplate Clauses

• III-A: Introduction and Recitals
  • Introduction and Recitals

• ---

  III-B: Definitions

  • N/A

• ---

  III-C: Independent Contractors

  • Independent Contractors

• ---

  III-D: Choice of Law and Courts

  • Choice of Law and Jurisdiction

• ---

  III-E: Notices

  • Notices

• ---

  III-F: Government Restricted Rights

  • Government Restricted Rights
  • Restricted Rights Notice

• ---

  III-G: Technology Export

  • Technology Export

• ---

  III-H: Force Majeure

  • Force Majeure

• ---

  III-I: Severability

  • Severability

• ---

  III-J: No Waiver

  • No Waiver

• ---

  III-K: Bankruptcy Rights

  • Bankruptcy Rights

• ---

  III-L: Conflicts among Attachments

  • Conflicts among Attachments

• ---

  III-M: Execution in Counterparts

  • Execution in Counterparts

• ---

  III-N: Construction

  • Construction

• ---

  III-O: Injunction

  • Injunction

• ---

  III-P: Internet-Related Boilerplate

  • N/A

• ---

  III-Q: Entire Agreement

  • Entire Agreement

• ---

  III-R: Amendment

  • Amendment
  • Unilateral Amendment

Appendices: clauses regarding open source software and online policies

• 1- Intellectual Property
  • N/A
• 2- Open Source Software Licenses
  • OSS Contract Terms and Policies
    • OSS-Specific Terms in Supplier Contracts
• 3- Clickwraps, Browsewraps, and Other Contracts Executed without Ink
  • N/A
• 4- Online Policies
  • Addressing Online Policies in Contracts
  • Acceptable Use Policies
    • Acceptable Use Policy
  • DMCA/Copyright Notice Policies
    • DMCA Notice
    • DMCA Policy
  • Privacy Policies
    • N/A

General Clauses

• II-A: Specifications
  • 1- The Definition of Specifications and their Central Role
    • Specs Definition
  • 2- Responsibility for Specifications
    • N/A
  • 3- Organizing and Editing Specifications
    • Specifications Blank Form
  • 4- Specifications as a Moving Target
    • Specifications as a Deliverable

• ---

  II-B: Service Level Agreement (SLA)

  • 1- The Provider’s SLA
    • Provider’s Standard SLA
  • 2- Customer-Friendly SLA Edits
    • Customer Edits to SLAs

• ---

  II-C: Maintenance, Including Updates and Upgrades

  • Maintenance

• ---

  II-D: Documentation

  • Documentation
  • Documentation as Specifications

• ---

  II-E: Schedule, Cooperation, and Assumptions

  • Schedule of Professional Services
  • Cooperation, Assumptions, and Delay Remedies

• ---

  II-F: Deliverables: Acceptance and IP Rights

  • 1-Acceptance and Rejection
    • Delivery and Acceptance
    • Refund for Failed Deliverables
  • 2-License and Other Rights to Deliverables
    • Rights to Deliverables

• ---

  II-G: Minimum Obligations to Distribute or Resell

  • Minimum Obligations to Distribute

• ---

  II-H: Nondisclosure/Confidentiality

  • 1-What’s Confidential?
    • Confidential Information Defined
    • Restrictions on Confidential Information
  • 2- Restrictions on Use
    • Nondisclosure
  • 3- Injunction, Termination, and Retention of Rights
    • Injunction, Termination, and Retention of Rights
  • 4- DTSA Exception and Immunity
    • DTSA Exception and Immunity

• ---

  II-I: Business Continuity, Including Disaster Recovery

  • Business Continuity Plan
  • Actual Continuity of Business

• ---

  II-J: Data Management, Privacy, and Security

  • 1- Customer Data Definition and Ownership
    • Customer Data Definition and IP Rights
    • All Personal Information Excluded
  • 2- Use of Data
    • Use and Disclosure of Data
  • 3- Compliance with Privacy and Security Laws
    • Applicable Law (Customer-Friendly)
  • 4- Data Location, Access, Deletion, and E-Discovery
    • Location, Access, and Deletion (Customer-Friendly)
  • 5- Data Security
    • Data Security (Customer-Friendly)
  • 6- Audits and Testing
    • Audits and Testing (Customer-Friendly)
  • 7- Data Incidents
    • Data Incidents (Customer-Friendly)
  • 8- Limited Data Terms
    • Processor/Host Limited Data Clause
    • Limited Data Clause for Incidental Access

• ---

  II-K: Warranties

  • 1- Warranty of Function
    • Warranty of Function
  • 2- Intellectual Property Warranty
    • IP Warranty
    • Warranty of Originality
  • 3- Data Warranties
    • Data Warranties
  • 4- Professional Services Warranties
    • Professional Services Quality Warranties
  • 5- Other Warranties
    • Special Warranties
  • 6- Disclaimers of Warranties and Other Liabilities
    • Typical Warranty (and Indemnity) Disclaimers
    • Additional Disclaimers
    • Mutual Warranty (and Indemnity) Disclaimers
  • 7- Warranty Remedies (and IP Remedies)
    • Remedies for Breach of Warranty
    • IP Remedies without a Warranty

• ---

  II-L: Indemnity

  • 1. Indemnity in General
    • Generic Indemnity
  • 2. IP Indemnity
    • IP Indemnity from the Provider
    • The Fifth Exclusion from IP Indemnity: Combination Claims
    • Customer/Distributor and “Mutual” IP Indemnities
  • 3. Data Indemnity
    • Data Indemnity from the Provider
    • Customer/Reseller and “Mutual” Data Indemnities
  • 4- Other Indemnities
    • Personal Injury, Compensation, Online Harassment, and Spam Indemnities
    • Distributor and Risky Industry Indemnities
    • Nuclear Indemnity
  • 5- The Cause Problem (or Advanced Indemnities)
    • Conditional Defense

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  II-M: Limit of Liability

  • 1- Dollar Cap
    • Typical Dollar Cap Limit of Liability
    • Order-based and Per-Contract Cumulative Dollar Gaps
    • Super-Cap
  • 2- Exclusion of Consequential Damages
    • Exclusion of Consequential and Similar Damages
  • 3- Unconscionability and Required Clarifications
    • Clarifications and Disclaimers
  • 4- Exceptions: Unlimited Liability
    • Typical Exceptions to Limit of Liability
    • Exceptions to Mutual Limit of Liability
  • 5- Limit on Indemnity Performance (as Opposed to Liability)
    • Limit on Indemnity Performance Obligations

• ---

  II-N: Liquidated Damages

  • Specification of Liquidated Damages
  • Justification for Liquidated Damages

• ---

  II-O: Audits of Software Use and Fees

  • 1- Provider’s Software Audit
    • Provider’s Software Audit
    • Fees for Prior Unauthorized Use (Back Fees)
  • 2- Customer’s Audit of Fees
    • Customer’s Audit of Fees

• ---

  II-P: Technology Escrow

  • Separate Escrow Agreement
  • 1- Deposit and Verification
    • Escrow Deposit and Verification
  • 2- Escrow License and Confidentiality
    • Escrow License
  • 3- Release Conditions
    • Escrow Release Conditions
  • 4- SaaS Escrow
    • Deposit and License Terms for SaaS Escrow
    • Fast Release in SaaS Escrow
    • Business Continuity Escrow

• ---

  II-Q: Step-in Rights for Outsourcing

  • Step-In Rights
  • Stepping Out

• ---

  II-R: Financial Stability

  • 1- Financial Reporting
    • Financial Reporting
  • 2- Insurance
    • Insurance

• ---

  II-S: Use of Trademarks

  • Use of Names and Trademarks

• ---

  II-T: Feedback Rights

  • Feedback License
  • Feedback Disclaimer

• ---

  II-U: Non-Compete and Employee No Poaching

  • 1- Non-Compete
    • Non-Compete: Restriction on Serving Competitors
  • 2- Employee No Poaching
    • Employee No Poaching

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  II-V: Term and Termination

  • 1- Term
    • Term
  • 2- Termination for Cause
    • Termination for Cause
  • 3- Termination for Convenience
    • Termination for Convenience
  • 4- Effects of Termination and Post-Termination Obligations
    • Effects of Termination (On-Premise Software)
    • Deletion of Data after Termination

• ---

  II-W: Transition Assistance

  • Transition Assistance

• ---

  II-X: Dispute Resolution, Including Mediation and Arbitration

  • 1- Escalation and Mediation
    • Escalation and Mediation
  • 2- Arbitration
    • Arbitration
  • 3- Waiver of Jury Trial and Class Action
    • Waiver of Juries and Class Actions

• ---

  II-Y: Assignment, Change of Control, and Divestiture

  • 1- Assignment in General
    • Anti-Assignment and Permitted Assignment
  • 2- Change of Control
    • Anti-Assignment and Termination for Change of Control
    • Assignment Allowed with Change of Control
  • 3- Divestiture
    • Divestiture with Assignment
    • Cooperation After Divestiture

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  II-Z: Everything Else

  • N/A