Boilerplate clauses usually appear towards the end of an agreement.

They are usually not contentious, although I have come across counterparties’ counsels who wanted to amend boilerplate clauses at the eleventh hour of negotiation. When asked for the rationale for the proposed amendments, none was given, and they retracted their comments.

A couple of things to look out for when including any boilerplate clause into an agreement:

1. Consider whether the boilerplate clause is appropriate given the nature of the agreement. For example, an assignment clause in a director’s service agreement to allow the parties to assign the agreement would not make sense as the nature of the agreement is for one party (the individual) to provide services personally as a director to the other party (the company).

2. Ensure consistency of the defined terms used in the boilerplate clause with the rest of the agreement. If the agreement is referred to as “Shareholders’ Agreement” throughout the agreement, do remember to change the term “Agreement” to “Shareholders’ Agreement” in the boilerplate clause when copying the boilerplate clause from another agreement.

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This post was first posted on Linkedin on 8 April 2022.