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1. Term and Termination:
- What is the duration of the agreement? Service duration?
- Does the vendor provide post-termination transition assistance?
- Data, material(s), and confidential information returned?
- Renewal options? Is renewal automatic?
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2. Service Description:
- What services are being provided?
- Where will the service description be included?
- What are the acceptance criteria?
- What schedules, milestones, and timetables are in place?
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3. Proprietary Rights:
- License to software, a license to access, or an assignment?
- Who owns the deliverables? Are there underlying licenses to components of the deliverables?
- Permitted use of your trademarks for marketing? Is consent required?
- Do the services or deliverables require licenses to third-party materials?
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4. Service Levels, Business Continuity, and Disaster Recovery:
- If the services involve access to externally hosted material(s), what service levels does the vendor guarantee?
- How are service levels/availability measured, monitored, and reported?
- What remedies or refunds are available?
- Is there a disaster recovery plan in place?
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5. Staffing and Subcontracting:
- Is there a designated project manager or business contact?
- Right to control staff continuity or request removal of personnel?
- Non-compete or non-solicitation provisions?
- Use of subcontractors permitted? Are there any conditions/restrictions? Does the vendor take full responsibility for subcontractors?
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6. Confidentiality:
- How is confidential information defined?
- What is the license to use confidential information?
- What are the exceptions or permitted disclosures?
- How will confidential information be returned upon termination?
- Does the confidentiality provision survive termination?
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7. Data and Data Security:
- Where is data stored? Are there multiple storage locations?
- Who owns the data? How is it licensed?
- What are vendor's security procedures and how are they tested and updated?
- What rights exist after termination? Will there be any hosting or processing by subcontractors?
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8. Privacy and Data Breach:
- Does the contract obligate the vendor to comply with data/privacy laws, rules, and regulations?
- Is there any personally identifiable information involved
- What reporting obligations and remedies are in place in the event of a security breach?
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9. Insurance:
- What categories of insurance are provided? What are the policy limits?
- Is e-commerce/cyber liability insurance provided?
- How and when will insurance documentation be provided?
- Is vendor willing to name customer as an additional insured?
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10. Dispute Resolution:
- Is there an informal dispute resolution process? What is the schedule for and what personnel are involved in such a process?
- Is there a right to withhold disputed fees?
- Will a dispute result in arbitration? If so, what are the rules?
- Are there any class action or jury trial waivers?
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11. Remedies and Limitation of Liability:
- Are there any liquidated damages or penalty interest payments?
- Is injunctive relief available for confidentiality or IP rights violation?
- Is there a limit or cap on direct damages? Does it include confidentiality, data security, and/or IP infringement?
- Is there an exclusion for special damages? What are the exceptions?
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12. Indemnification:
- Is there indemnification for material breach, negligence, and/or violation of law?
- Is there indemnification for IP infringement?
- What is the indemnification procedure?
- Are there any liability or insurance limitations elsewhere in the contract that might limit indemnification?
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13. Representations and Warranties:
- Are there service, software, or security warranties? Is there a time limit?
- Is there a warranty for non-infringement of IP and proprietary rights?
- Are there any disclaimers?
- What remedies are available for a breach? Are they exclusive?
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14. Audit Rights:
- What aspects of the services or payments can be audited?
- Can the audits be conducted by a third party?
- What is the record retention policy?
- What are the remedies in the event of a discrepancy?
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| 15. What Legal Boilerplate to Include: |
- Notices
- Assignments
- Counterparts
- Relationship of the parties
- Severability
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- Waivers
- Entire Agreement
- Survival
- Governing law / venue
- Headings
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