Commercial Provisions

Liability

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Indemnification

Discusses the function of indemnification clauses in transactions and how the different parties view them. Also breaks down a sample indemnification clause and explains the language and purpose of its various components, such as the duty to indemnify versus defend, covered losses and claims, and indemnification procedures.

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Force Majeure

Discusses the components of typical force majeure clauses, including the definition of a force majeure event, excusal of non-performance, and the parties’ obligations if an event occurs.

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Disclaimer of Implied Warranties

Discusses what implied warranties are and why sellers disclaim them in their agreements. Walks through a sample provision and explains which language is important to each party.

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Limitation of Liability

Explains the function of limitation of liability provisions in agreements. Also examines a sample clause and discusses its important concepts, including limits on types of damages, limits on the amount of damages, how caps work, and carve-outs.

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Reps & Warranties

Looks at the function of reps and warranties in agreements and transactions, different types of reps and warranties, and how and why parties qualify them.

Interpretation and Administration

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Notice

Talks about why notice provisions matter, what information they typically include, and why.

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Counterparts

Explains what counterparts provisions are, why they’re used, and the main concepts these clauses typically include.

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Schedules and Exhibits

Discusses the types of information that parties put in schedules, and why schedules and exhibits clauses are used in agreements. Also looks at a sample clause.

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Entire Agreement

Explains the purpose of entire agreement clauses, when they become important, and the language they generally include.

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Severability

Discusses what a severability clause says, why parties include them in their agreements, and how these clauses are treated by courts.

Protection of Rights

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Publicity

Explains the reasons parties use publicity provisions, and examines the restrictions and exceptions found in a typical provision.

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Audit Rights

Discusses when audit provisions are used, how the transaction type affects the provision, and what information the clauses usually provide, such as who can conduct the audit and how to treat the findings.

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Confidentiality

Discusses the various components typically found in confidentiality clauses and why they’re important, including the definition of confidential information and its carve-outs, restrictions and permitted uses, returning confidential information, and breaches.

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Data Privacy and Protection

Examines the purpose of data privacy clauses and each party’s considerations when drafting these clauses. Also describes the specific information typically contained in these provisions, including how to define what data is protected, security requirements and audit rights, and what happens if there’s a data breach.

Term and Contract Changes

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Amendments and Waivers

Describes why agreements have amendment and waiver provisions, and the concepts and language these provisions generally include.

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Term and Termination

Describes term and termination provisions, including effective dates, terms and renewals, different ways a contract can terminate, effects of termination, and termination as a remedy for breach.

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Survival

Explains what survival clauses do, the reasons provisions in an agreement might need to survive, and the language typically used in these clauses. Also examines which sections of agreements are usually included in survival clauses.

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Assignment

Explains what assignment provisions do, why certain language is included, and how change of control relates to assignment.

Dispute Resolution

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Jury Trial Waiver

Examines a sample waiver of jury trial provision, discussing the scope of the waiver and enforceability considerations.

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Arbitration

Looks at reasons parties might elect arbitration, what they typically include in their arbitration clauses, and why. Walks through and explains a sample arbitration provision.