DPAs (Data Protection Agreements or Exhibits (Addenda)) are common in commercial arrangements involving access to the personal data of end users. When you are the customer in such a transaction and your end users’ data will be accessed by a vendor, it is important that you fully understand the scope of the protections being afforded this data under the DPA, especially when the DPA is drafted by the vendor.

As we discussed in part one, templated contracts can be a great resource, saving companies both time and money, when used in a coordinated and thoughtful way – i.e., drafted by an attorney with knowledge of your organization and industry, consistently rolled out to appropriate stakeholders, regularly reviewed for relevancy and compliance, and updated as needed. To ensure such use, I recommend creating a “template playbook” to help manage the use of contract templates throughout an organization.

There’s a good chance your company uses contract templates in support of its day-to-day commercial legal needs. In fact, most companies will templatize common, recurring agreements as a time- and cost-saving practice. However, this practice has its limitations. First and foremost, not all contracts can be converted into templates. Moreover, without the right coordination and oversight, the use of templated forms can expose a company to a number of unforeseen consequences. In this 2-part series, we will explore the basic advantages and considerations when developing contract templates, and then discuss best practices for building an effective template library.

Most commercial contracts include defined terms to improve readability and reduce ambiguity. In some cases, however, those definitions do not receive the same scrutiny as other clauses and their application throughout the rest of the agreement can be overlooked. For example, when a party to a contract is defined “together with its affiliates,” the language may seem innocuous, but this linking of entities significantly impacts the nature of the contract and can result in a host of unanticipated risks and liabilities not only for the contracting entities but for those unnamed entities who may be inadvertently bound to a contract to which they are not even aware they are a party.

As the Covid-19 pandemic wears on, forcing businesses to continue suspending or terminating contracts, it seems the oft-overlooked notice provision is finally having its day. Although notice provisions can take a multitude of forms, many are proving to be antiquated or problematic, especially considering the substantial changes to the way we work. To that end, now may be a great time to review the notice provisions in your form contracts and make adjustments where needed.

We’ve all heard stories about lavish closing dinners (perhaps you’ve attended one or more), where the completion of large corporate transactions are celebrated over dinner, drinks and token gifts of appreciation. Yet, even the execution of a small commercial agreement can be cause for raising a glass or simply breathing a deep sigh of relief. Hard work deserves a moment of pause. However, once the ink has dried on a newly-executed agreement and the party is over, what happens (or should happen) next? Placing the agreement into a neat, three-ring binder may feel organized, but it will not ensure performance under the agreement.

A year into the COVID-19 pandemic, some businesses are still incurring losses due to COVID-related closures and other restrictions. As we shared last April, the possibility of mitigating those losses by relying on a force majeure provision depends on a variety of different factors, including which state law governs your contract, the exact wording of the force majeure clause contained within it, and other facts and circumstances, such as the subject matter of the agreement and/or the foreseeability of the pandemic at the time you entered into the contract.

A common or “boilerplate” provision in commercial contracts is the renewal clause. Typically included in the Term section, this clause dictates if and how the agreement will renew after the initial term ends. When entering an agreement, your position on the renewal provision will likely depend on your role in the relationship (e.g., as either buyer or seller of products/services).

In some agreements, renewal is automatic if neither party opts out in writing. Although automatic renewal terms may be convenient, particularly when your business depends on the seller’s product or license, they may also be costly unless there is a termination for convenience right with a short notice period.