Boilerplate
You’ll not see a section of the license agreement called “boilerplate.” Loosely speaking, these clauses tend to appear towards the end of the agreement, just as you’re tiring out from reading and negotiating.
But if “boilerplate” isn’t a clause or a section of the agreement, what is it? The term refers to the kind of “standard form,” “ready-made” language that could appear or easily be inserted into a variety of agreements to accomplish its purpose without negotiation or modification. [1] Common examples include terms like force majeure (which allocates risk and loss if performance becomes impossible, such as through an beyond the parties’ control like a hurricane); amendment in writing (which requires that should the parties post-execution wish to alter terms, such alteration must be done in writing); and more. Sounds like dry stuff, too conventional to be consequential?
Except so-called boilerplate terms are important. All e-resource contractual terms are important. If you pay attention only to the “main” commercial terms, without scrutinizing the seemingly standardized terms within the licensor’s form, you risk waiving certain types of damages and warranties; agreeing to a restricted time period in which you can file claims; and more.
The point of this Part is to help draw your attention to the particulars of some clauses that seem “standard” or even non-negotiable, but that may have outsized impact on your rights and obligations if you don’t give them their due in the negotiating process.
- Black’s Law dictionary explains that the “modern sense” of boilerplate “comes from copy and artwork etched on metal plates (or molds made from a master plate) and distributed to newspapers and printers. The copy could not be edited.” Black's Law Dictionary (12th ed. 2024), boilerplate ↵