Subcontracting clauses

Authored by the LexisNexis Legal Writer team. In many business and commercial contracts for the performance or supply of services or other work, one or more parties may wish to subcontract the performance of their obligations under the contract to a third party (or prevent parties from doing so). While subcontracting is particularly common in the building and construction industry (where a builder will typically subcontract...

Announcements clauses

Authored by Karen Lee, Principal, Legal Know-How. Purpose of this boilerplate clause An announcements clause (sometimes called a “publicity clause”) regulates parties’ rights to make announcements or other public disclosures about their agreement and the transactions and arrangements contemplated by it. For example, this may be a press release to provide information to investors and customers of...

Privacy clauses

Authored by the LexisNexis Legal Writer team. Purpose of clause Many commercial and business relationships involve one or more of the parties collecting, using, handling or disclosing personal information about individuals (eg personal information about customers, suppliers or manufacturers). These activities may be subject to the requirements of the Privacy Act 1988 (Cth) (Privacy Act) (and other Commonwealth, state...

Work health and safety (WHS) clauses

Authored by the LexisNexis Legal Writer team. Purpose of clause A work health and safety (WHS) clause standardly requires the parties (or a specified party) to comply with their obligations under the relevant Commonwealth, state and/or territory WHS legislation in performing the agreement, and to ensure (or at least use reasonable endeavours to ensure) that their workers (including employees, contractors and subcontractors...

Exclusion and limitation of liability clauses

Authored by the LexisNexis Legal Writer team. Commercial contracts often contain exclusion clauses or limitation of liability clauses to allocate risk and liability between the parties. An exclusion clause is a provision in a contract that seeks to exclude a party’s liability for certain actions, events, matters or circumstances, such as liability: for the party’s breach of contract; for the party’s...

Dispute resolution clauses

Authored by the LexisNexis Legal Writer team. A dispute resolution clause requires or permits the parties to an agreement to take certain steps to resolve disputes arising under or in relation to the agreement. One of the main commercial functions of such a clause is to ensure that the parties have exhausted non-litigious methods of dispute resolution before resorting to litigation (which is likely to be costly and...

Indemnity clauses

Authored by the LexisNexis Legal Writer team. In the context of commercial and business contracts, an indemnity is a contractual obligation assumed by one party to hold another party harmless against, or to compensate another party for, loss which that other party suffers as a result of certain specified events (such as the indemnifying party breaching the agreement): see, eg Mason CJ’s description of an indemnity...

Force majeure clauses

Authored by the LexisNexis Legal Writer team. A “force majeure” clause sets out the parties’ rights and obligations when one or more parties are unable to perform the contract due to an event beyond their control (usually referred to as a “force majeure event”). Such clauses are particularly common in business and commercial agreements to supply goods or services or transport goods, as...

Reasonable endeavours clauses

Authored by the LexisNexis Legal Writer team. Business and commercial contracts often contain provisions requiring the parties to use their reasonable endeavours to perform an obligation or achieve an outcome. These provisions are intended to qualify (ie, lessen the onerousness of) the relevant contractual obligations so that they are not absolute or strict obligations. This can be useful where the parties are unsure...

Set-off clauses

Authored by Karen Lee, Principal, Legal Know-How. Purpose of this boilerplate clause “Set-off” generally refers to a party reducing the amount it owes another party by an amount that the other party owes it. For example: Party A owes $100 to Party B. Party B owes $50 to Party A. In the above scenario, Party A may wish to set off the two amounts so that Party B’s $50 debt to Party A is discharged...

Release clauses

Authored by the LexisNexis Legal Writer team. Nature of release A “release” refers to a party renouncing and discharging its rights and claims against another party, usually in connection with a specified matter. For example, in the context of the settlement of disputes or litigation, it is common for the parties to a settled dispute or litigation to provide mutual releases in relation to the matters the...

Confidentiality clauses

Authored by the LexisNexis Legal Writer team. One or both parties to a commercial agreement will often disclose confidential information to the other to enable the parties to perform their obligations under the agreement and implement the arrangements or undertake the transactions that the agreement contemplates. Such information can include commercially valuable and sensitive information such as trade secrets, know...

Governing law and jurisdiction clauses

Understanding governing law and jurisdiction clauses is essential for drafting commercial contracts that provide clarity and enforceability. This guidance note explores the critical role these clauses play in defining the applicable legal framework and dispute resolution forums. It covers the strategic selection and legal implications of these clauses, highlighting their impact on contract validity, enforcement, and litigation...

Waiver clauses

Understanding waiver clauses is essential for practitioners drafting or negotiating commercial contracts. This guidance note explores the legal framework surrounding waiver clauses, clarifying their role in preventing unintentional relinquishment of contractual rights. It distinguishes between boilerplate waiver provisions and substantive waivers requiring detailed scrutiny. Key insights include the legal definition of...

Time of the essence clauses

Understanding time of the essence clauses is crucial for practitioners drafting or reviewing contracts where timing impacts contractual obligations and termination rights. This guidance note explores the legal framework governing these clauses, highlighting their significance in determining whether time stipulations are essential terms. Topics Covered What is a “time of the essence” clause? Purpose...

Third party rights clauses

The guidance note on third party rights clauses explores the complex interplay between contract law and the enforceability of benefits granted to third parties. Practitioners must understand how these clauses function within Australian legal frameworks, where their impact can differ significantly from other jurisdictions. This document provides comprehensive coverage of statutory modifications, exceptions to privity,...

Survival clauses

Survival clauses are critical contractual provisions ensuring certain rights and obligations persist beyond contract termination. This guidance covers essential considerations for drafting and enforcing survival clauses in commercial agreements, with a focus on protecting confidentiality, warranties, indemnities, and other post-termination obligations. Topics Covered Purpose of this boilerplate clause Key drafting...

Notice clauses

This guidance note on notice clauses provides a comprehensive overview of the legal framework governing how parties to agreements must or may give notices and communications. Practitioners must understand the critical distinctions between mandatory and permissive notice clauses, and the complex implications of delivery and receipt requirements under varying methods. Topics Covered Mandatory and permissive notice...

No merger clauses

The guidance note on no merger clauses explores how these contractual provisions prevent the automatic merging of parties’ rights and obligations upon contract completion, a key concern in commercial agreements. Authored by legal experts, it explains the clause’s purpose, its relationship with survival and entire agreement clauses, and the complex doctrine of merger that it seeks to address. Topics Covered...

Language clauses

The Language clauses guidance note provides expert insight into drafting contracts involving multiple languages, essential for practitioners navigating international agreements. This document addresses critical considerations to ensure clarity and prevent disputes arising from conflicting language versions. Topics Covered Purpose of this boilerplate clause Key drafting considerations for this boilerplate clause...

Further action clauses

The guidance note on further action clauses provides a detailed overview of this essential boilerplate clause often found in commercial agreements. It explores the purpose, drafting nuances, and strategic applications of further action clauses across diverse transactions. Practitioners must understand how these clauses ensure parties complete all necessary steps to give agreements full legal effect, especially in complex...

Costs and expenses clauses

The Costs and expenses clauses guidance note explains how parties can strategically allocate financial responsibilities within agreements, a critical aspect for legal practitioners drafting commercial contracts. This expert guidance outlines the scope and implications of these boilerplate clauses without revealing full drafting instructions. Topics Covered Purpose of this boilerplate clause Key drafting considerations...

Assignment and novation clauses

Assignment and novation clauses are critical components in contract law, delineating how parties may transfer rights and obligations. This guidance note explores the nuanced distinctions and legal frameworks surrounding these clauses, essential for practitioners managing contractual transfers. Topics Covered Transferring contractual rights vs obligations Assignment Novation Key drafting considerations Change...

Relationship of the parties (no employment, partnership or agency) clauses

This guidance note explores the critical role of “relationship of the parties” clauses in commercial agreements, emphasising their function in defining the parties’ legal positions and limiting unintended fiduciary, employment, or partnership obligations. Practitioners must understand the strategic importance of these clauses to mitigate risks associated with misclassification and legal exposure. The...

Severability clauses

The guidance note on severability clauses provides expert analysis on the strategic role these clauses play in business and commercial contracts. Practitioners must understand how severability protects contracts from being wholly void if specific provisions are unenforceable. This document explores key legal principles, case law, and drafting considerations critical to safeguarding contractual validity. Topics Covered...