Viewing: boilerplate

Signing Quotations

I've advised people for years not to sign the other side's purchase orders, acceptances, quotations, and other ordering documents unless the documents have been fully negotiated. That's because it puts you at a huge disadvantage in the battle of the forms. I've also advised people to negotiate terms that are essential--even if they don't sign a […] Read More

Be Sure to Read the Boring Stuff at the Back of Your Contracts

Sometimes the boring standard provisions in the back of a contract can really be brutal. Take this scenario, for example:  Your company books a trip on a cruise ship and signs a contract to charter the ship. It’s the spring of 2001 and you have the foresight to obtain verbal assurances and a letter from […] Read More

Are Browsewraps Enforceable in New Jersey? Maybe

A New Jersey appellate court recently refused to enforce an online forum selection clause that was contained in a browsewrap agreement, but it stopped short of holding that browsewraps are unenforceable as a matter of law. The case is interesting because of the comparisons the court draws with the influential and well-known case of the […] Read More

South Park’s Kyle Learns the Dark Side of Online Terms

South Park has never sustained my interest, but this clip, which I discovered on, is downright funny. In the clip the green-capped character (Kyle, according to finds that he agreed to much more than he bargained for when he clicked on the iTunes terms. HUMANCENTiPADTags: SOUTHPARKKyle Broflovski,Eric Cartman,more […] Read More

The E-Contracting Paradox: No One Reads Online Terms But Everyone Agrees to Them

Let’s face it, no one reads online terms and conditions. Admit it, you don’t read them either. I know you don’t, because I don’t. And I read user’s manuals (and file them). I never quit a book until I’m finished, no matter how bad the book is. I read the dust jacket, copyright page, table […] Read More

Postette: Can You Incorporate Online Terms and Conditions into a Written Contract?

I've been asked on occasion whether a company can post its standard terms and conditions online and incorporate them into their contracts by inserting a reference in each contract to the online terms. The answer in many cases is yes, but there are some issues to navigate. This excellent article, which appeared in the April 2010 newsletter […] Read More

Contract Hygiene: Five Healthy Contracting Habits (Part 2)

In this recent post I discussed some habits that businesses can adopt to increase their contract hygiene. These practices, which can improve a business’s health, are inexpensive and effective, yet often neglected. To recap, the first three habits are: Negotiate before you sign. Give important contracts special attention. Don’t sign the other side’s boilerplate terms […] Read More

Can You Win the Battle of the Forms?

I’ve long thought that the “battle of the forms” is easy to lose but impossible to win. That’s the perspective of a commercial attorney who approaches the issue from the front end—where the battlefield consists solely of varied hypothetical future situations. A litigator on one side or the other, of course, wins each battle that […] Read More

Contract Hygiene: Five Healthy Contracting Habits (Part 1)

“As few as 50% of restaurant workers wash their hands.” I was introduced to that disturbing stat during a presentation about some sort of high-tech handwashing tracking device that could monitor which employees were washing their hands. I’m not sure whether it was mounted to the sink or the soap dispenser or exactly how it […] Read More

Postette: Renvoi

Ever wonder why governing law provisions in contract boilerplate include a variation of the parenthetical “without giving effect to such state’s conflicts of law principles”? The answer is renvoi, which could result in the application of the laws of a state other than that chosen by the parties if the chosen state’s conflicts of law […] Read More