Boilerplatenoun
1. Rolled steel plates for making boilers
2. Standardized pieces of writing for use as clauses in contracts.
3. N. Amer. Stereotyped or clichéd writing.Footnote 1
Introduction
As law librarians you may have seen books on your shelves or on your online sources about boilerplate clauses; there a good few of them about. The audience for these books of course are lawyers, more specifically those drafting and reworking contracts. The audience for this article is not the lawyer but the librarian who deals with contracts for online subscriptions, whether or not you have the final say. A definition of “boilerplate” is given above and you can envisage a piece of metal welded over joins of something previously imperfect, but now working due to the addition. You can imagine all the hot gas of the words trying to escape, but being secured by the well-crafted plate. This article is a write up of a talk given at the BIALL conference in Brighton in June 2010 so apologies to those delegates who attended and have seen most of this already. Thank you though to those who said they felt it worth writing up for the benefit of a wider audience.
Why negotiate clauses?
Very often in negotiation there is a focus on price. Price is of course a valuable thing to be able to negotiate. The correct working of contract terms (or clauses) can add value, change value and ultimately have a bearing not just on price, but also on many other aspects of your experience with an online subscription. Good contract terms can also support a sustainable relationship with your representative and avoid awkwardness and misunderstandings. Well negotiated clauses can support your professional role in your organisation, at a time when volunteers are often being drafted in. Clauses that protect your organisation in times of uncertainty are therefore doubly valued as you are planning for the unknown and mitigating risks that may or may not arise, with a relatively small investment of time and a lot of expertise.
Some assumptions
For the purposes of this article I am going to make a few assumptions. They will not always exist, but from experience they very often do.
1. The contract you are looking at does not work for you as it currently stands.
2. We are negotiating a contract and the supplier is amenable to reasonable suggestions as to changes.
3. You understand the need for balance. You cannot put all the risk on the supplier.
4. You are fascinated, at least in part, by contract terms and their negotiation, have read this far and will use this article as a guide, not necessarily literally.
Some sample clauses
The wordings of the clauses appearing at the end of the article are suggestions only and individual circumstances and policies of the organisation should take precedence. As these clauses are likely to be used in legal documents, it has to be pointed out that the author is not a lawyer and this article does not constitute legal advice.
The location and delivery of these clauses can vary. They may be merged into the body of the original, used in a side letter, which is a mechanism for adding specific terms to a contract without interfering with the original, appear in an appendix, or wherever works for both parties. These are just samples, many more can be used.
Getting the clauses right can add a huge amount of value to a contract. For example, the dissemination clause in the right format can mean that something is worth a subscription, whereas previously you could not justify the price, so you are the winner and the supplier is the winner as they have new or continued revenue. However, from my experience, it is not about getting the contract water-tight. It may sound bizarre, but there needs to be some wriggle room for all those unknowns. One of the examples talks only about appropriate compensation and does not try to pin down what that compensation may exactly be. What it does do is put an obligation on the supplier to acknowledge that you have suffered a loss and need to talk about it. Compensation can then be something that works for that particular eventuality. It may be money to offset the cost (do not expect the full cost to be covered, although you can hope!) of buying the content you have just lost elsewhere, or it may be the addition of a new module.
The few examples included here are intended to be the most common changes one might consider including or amending in a contract, but the options, unlike time, are endless. It is not as simple as going through with a fine-toothed comb and getting exactly what you want. As previously mentioned the ideal contract needs to be balanced. Unless you are the large subscriber with mega clout, ultimately yes, money and size does help. You need to know which battles to pick and which issues most require your attention. In any other situation the previously mentioned desired sustainable relationship with your supplier will be at jeopardy and you will get a reputation for nit-picking where it may not always be necessary and will risk being rebuffed on points that are vital to you whilst only winning insignificant changes. When looking at a contract and considering desired changes classify every change you want as follows:
1) Deal breaker: unless a change is effected you cannot proceed with the contract as it stands.
2) Highly desirable: to mitigate the most likely unknowns or issues you need to change these terms
3) Nice to haves: if possible and practicable you would like to change these terms, but read back on the entire contract and see whether it would unbalance the contract if you included them all.
Conclusion
It is up to your judgment to know how far you can put your case and how much on your wish list you can change. Ultimately this is a prime example of the value that a librarian adds to an organisation. Your final task is to remind your employer that you perform a valuable role, and emphasise the positive effect of your experience in effectively negotiating contracts for the benefit of the business as a whole.
Some Sample Clauses
