General Clauses

• Author: David W. Tollen
• Pages: 61-203

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PART II

General Clauses

“General Clauses” is a catch-all category, referring to everything

that’s not a prime clause or a boilerplate clause. The following terms

account for most of the ink spread across most software and IT ser-

vices contracts. The one characteristic shared by all these clauses is

that they generate a lot of disagreement, debate, and compromise.

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A. Technical Specifications

Technical specifications describe software and computer systems.

They say what the technology will do: how it’s supposed to perform.

They’re appropriate for most software-related contracts, including

licenses, assignments, distribution agreements, and cloud services

agreements. They also appear in professional services agreements,

describing the intended functionality of technology deliverables. In

many contracts, technical specifications, or “specs,” provide the most

important terms. Yet businesspeople and lawyers usually pay them

little attention.

Some IT professionals distinguish functional specifications from

technical specifications. A hazy line separates the two, but in general,

functional specs describe software from the user’s point of view: what it’s

supposed to achieve—everything from broad business outcomes, like

“tracking inventory shipping times and destinations,” to fine details,

like how screen shots should appear. Technical specs are more . . .

technical, looking at issues like system architecture and program-

ming languages. This book makes no such distinction. It addresses

both under the “technical specifications” heading.

The specs provide information used in other contract clauses.

For instance, here’s a warranty clause: “Vendor warrants that,

during the first 1 year after the Effective Date, the Software will per-

form according to its technical specifications listed in Attachment

A.” And here’s a maintenance clause: “Vendor shall maintain the

System so that it performs materially in accordance with its Speci-

fications.” Or a development professional services clause: “Vendor

shall design a software application that conforms to the technical

specifications attached hereto as Attachment B.” Or an acceptance