1. Beyond the Boilerplate Presented by: Jay LeMoine and Christian Petersen March 20, 2012

2. Overview Drafting Strategies Contractual Terms Remedies Survival

3. Aspects of Contract and Terminology C Clear Comprehensible Correct

4. Aspects of Contract and Terminology C Critical Cool?...

5. Dreams Gone Wrong

6. Clarity Understanding: context intent user/reader

7. Comprehensible Standard Language respecting complex concepts clear and comprehensible ≠ “simple” standard usage rather than legalese

9. Comprehensible Loaded Language what do the “fancy” words mean? does the reader understand them? is there another way to say it?

10. Comprehensible The Myths “tried and true”

11. Correct Getting It Right precision of language the “too hard” pile does the right have a remedy? do you need a remedy?

12. Correct Getting It Wrong the problem with precedents the tyranny of time the conundrum of cost

13. Key Contractual Concepts

14. Term and Termination After full performance of terms In accordance with its terms Agreement between the parties Reasons outside the contract Breach

15. Types of Contractual Terms Three types of terms: conditions warranties innominate (or intermediate) terms

16. Types of Contractual Terms Characterization depends on the true construction of the contract Type of term determines remedy

17. Conditions Most important type of term Not conditions precedent or subsequent Does it go to the root of the contract? Breach gives right to terminate

18. Warranties The lesser promises in the contract Breach does not permit termination must continue performing Innocent party has right to sue for damages

19. Innominate Terms Classification of term cannot be done in advance Remedy should correspond with consequences Did the breach deprive of substantially the whole benefit?

20. Identifying Conditions Legislatively imposed Expressed in contract Intention of parties

21. The End of Fundamental Breach Created to address unfairness of exclusion and limitation of liability clauses Divorced from the intention of parties Created confusion Tercon

22. Repudiation “words or conduct evincing an intention not to be bound by the contract” Election to treat contract at end Must communicate election Need not communicate reason/can be wrong Parties obligations are at an end

23. Anticipatory Repudiation Not every anticipatory breach gives election Must elect soon but not immediately Must give notice May change mind - right to terminate vanishes

24. Remedies for Breach of Condition Innocent party may: Accept repudiation obligations at end; sue for damages; or restitution but not specific performance

25. Remedies for Breach of Condition Affirm contract obligations continue; can sue for damages and/or specific performance Waive breach

26. Affirmation vs. Waiver Waiver excuses the breach Estoppel arguments Affirmation: preserves the rights and obligations must be ready, willing and able to perform

27. Restitution Innocent party can claim value of benefits conferred on breaching party non profitable contracts damages are unprovable recovery of non-monetary benefits Old rule: required “total failure of consideration”

28. Rescission voids contract restores parties to the position in which they stood before the contract was entered into often result of misrepresentation but can be available for breach of contract

29. Terms that Survive the Breach Liquidated damages Entire agreement Limitation clauses Non-solicitation/non-competition clauses Confidentiality clauses Enforceable if contract not rescinded