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)

III. BOILERPLATE (typical back-of contract material, but more important than you think) 

NEW: AI CONTRACT CLAUSES

David Tollen recently published an issue-spotter on artificial intelligence (AI) contracts, and it includes several sample clauses. These  supplement the clauses provided here.

ARTIFICIAL INTELLIGENCE CONTRACTS: AN ISSUE-SPOTTER

All these clauses are provided free of charge, including for use in your contracts and your clients’ contracts. But they’re all 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

• ---

  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

• ---

  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

• ---

  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

• ---

  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

• ---

  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

• ---

  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

• ---

  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

• ---

  II-Z: Everything Else

  • N/A