The clauses at the back of a contract get the least attention during negotiation and the most attention once something goes wrong. Governing law and forum clauses decide where you fight. Limitation-of-liability and indemnity clauses decide how much you can recover. Notice provisions decide whether you preserved your rights at all. We draft contracts with those clauses written for the deal in front of you rather than copied from the last one, we review counterparty paper for the provisions that shift risk quietly, and we enforce and defend contracts in litigation, where the boilerplate often becomes the main event.
Formation And Interpretation
A contract requires offer, acceptance, and consideration, and disputes often start with whether those happened at all: an email exchange treated as a deal, a signed term sheet that was meant to be nonbinding, or work started before the paperwork was final. Once a contract exists, courts look first to its plain language, read it as a whole, and in many states construe true ambiguity against the drafter. The parol evidence rule limits the use of prior negotiations to contradict a fully integrated writing, and statutes of frauds, including UCC 2-201 for sales of goods of $500 or more, require certain contracts to be in writing.
The Clauses That Decide Disputes
Governing law clauses are usually enforced if the chosen state has a substantial relationship to the parties or the deal, following Section 187 of the Restatement (Second) of Conflict of Laws. Forum selection clauses are enforced firmly; under the Supreme Court's Atlantic Marine decision, federal courts transfer cases to the chosen forum except in unusual circumstances. Limitation-of-liability clauses typically exclude consequential damages and cap direct damages, with carve-outs for indemnity, confidentiality, and willful misconduct. Indemnities need clear lines between the duty to defend and the duty to pay. Force majeure clauses are read narrowly and cover only the events they list. Anti-assignment, entire-agreement, amendment, and notice clauses each carry their own traps.
Drafting And Reviewing Contracts
We draft master agreements, services contracts, purchase terms, and amendments, and we keep a working set of boilerplate positions that we adjust for your side of the deal. When you receive counterparty paper, we give you an issue list that separates the clauses worth fighting over from the ones that are acceptable as written, with fallback language for each. We pay close attention to how clauses interact: a liability cap that swallows your indemnity, an anti-assignment clause that blocks the sale of your company, or a notice provision that requires a fax to an address no one checks. For standardized contracts, we offer flat-fee review with a stated turnaround.
When The Contract Is Contested
In litigation, boilerplate questions are often decided early, and they shape everything after. We bring and oppose motions to dismiss or transfer based on forum selection clauses, motions to compel arbitration under the Federal Arbitration Act, and motions on whether a damages limitation bars a claim for lost profits. We litigate whether an event qualified as force majeure, whether impossibility, impracticability under UCC 2-615, or frustration of purpose applies, and whether a party gave proper notice. We also handle disputes over contract formation, ambiguity, and reformation. Commercial disputes are handled with our Litigation practice, so the lawyers who read the contract also argue it.
Practical Steps And Mistakes
Read the boilerplate in every contract with a significant customer or vendor, and track the notice addresses and deadlines it sets. Do not let a counterparty's purchase order or click-through terms quietly replace your negotiated agreement; include an order-of-precedence clause. Check that your liability cap and your insurance coverage line up. Confirm that an anti-assignment clause will not require consent for a merger or asset sale you might pursue. Update notice addresses when you move offices. And when a dispute starts, follow the contract's notice and cure steps exactly, because a court may hold you to them even when the other side's breach is obvious.
