Model Contracts
Even lawyers do not always start from scratch when drafting contracts. They also regularly use their own or third-party model contracts; or use artificial intelligence (AI) to draft contracts (s. below). However, we strongly advise against a complete «copy and paste». Model contracts should rather serve as an inspiration for contract drafting. One can see what contractual considerations others have made in similar (probably never exactly the same!) legal relationships. If model contracts or individual clauses are nevertheless adopted in their entirety, they must be adapted to the specific legal relationship.
Sources for model contracts are many and varied. I am familiar with the fee-based model contracts of Swico and WEKA. Swico is the association of the Swiss ICT and online industry. Its model contracts have been developed for the ICT and online industries and can be found at the following link: https://www.swico-modellvertraege.ch/en/shop.htm . WEKA is a Swiss publishing house and has been publishing numerous model contracts for various legal transactions for a long time. The model contracts of WEKA cannot be purchased individually but only as a subscription and can be found under the following link: https://www.weka.ch/recht/auftrag-und-werkvertrag/weka-mustervertraege.html. The Federal (Switzerland) model IT agreements are free of charge. These can be found under the following link: https://www.beschaffung.admin.ch/bpl/de/home/auftraege-bund/mustervertraege.html. The counterpart are the IT model contracts of the administration of the Federal Republic of Germany. These can be found under the following link: https://www.cio.bund.de/Web/DE/IT-Beschaffung/EVB-IT-und-BVB/evb-it_bvb_node.html. It should be noted that both model contracts of the Federal Administration of Switzerland and Germany have been edited from the point of view of the respective administrations. This means that the contracts are certainly fair, but also definitely «tuned» in favour of the respective administrations.
Drafting contracts with AI
Recently, for example, we have been recommending to our students in legal coachings in the startup support programme to draft contracts with the support of artificial intelligence (AI), specifically chatbots such as ChatGPT from OpenAI or Gemini from Google. The comments made above on dealing with model contracts apply analogously to the corresponding results. We even offer specialised courses for lawyers on this topic.
As an example, we will develop a software licence agreement below with the support of a chatbot based on the following facts and in the primary interest of a software company (licensor).
Important: Never post details of the parties! Anonymise the parties and, if necessary, distort the facts. Attention! Adapt the draft of the chatbot later to the specific facts of the case.
X AG (licensor), CH-Zug, licences software to the customer (licensee) for its customer management. The Licensor is the owner of all rights to the software and also acquires ownership rights to any changes or extensions to the software without compensation. The software has the following functions: Recording of customer data; allocation of documents, in particular correspondence from Microsoft 365, to the recorded customers; management of contracts with customers and suppliers; invoicing. The software is made available to the licensee by the licensor as Software as a Service (SaaS) on its cloud. The licensee is responsible for its own hardware and software and for internet access. Data traffic between the licensee and the licensor’s cloud is encrypted by the latter. The Licensee receives a simple, worldwide licence. The licence is granted for an indefinite period. It may be terminated by either party with 3 months’ notice to the end of a calendar year, for the first time to the end of the second calendar year after conclusion of the licence agreement. The licence fee consists of an annual flat rate of CHF 3,000 incl. VAT and an annual fee of CHF 75 incl. VAT per customer. The number of customers is calculated annually on the basis of the number of customers as at 1 June; in the case of a first-time licence, according to the licensee’s estimate. The licensor either requests the corresponding number of customers from the licensee or the licensee reports this to the licensor. If the licensor has any doubts in this regard, it has the option of having the number of customers verified by a Swiss trust company at its own expense. The licence fees invoiced by the licensor must be paid within 30 days of receipt of the invoice, and from the second licence fee onwards in any case by the end of August of the year preceding the licence at the latest. If the licence agreement comes into force in a current year, the licence fee is calculated pro rata temporis. The licensee must accept patches and updates for the duration of the licence. The Licensor limits its liability to a one-off payment of a maximum of CHF 30,000 including VAT. The parties agree to maintain confidentiality with regard to information exchanged between the parties that is not generally known. This confidentiality shall continue beyond the end of the contract insofar as the parties have an objective interest in it. The GTC for software licences and the associated services of the licensor form an integral part of the licence agreement. The licence agreement is subject to Swiss law. The exclusive place of jurisdiction is the city of Zug, Canton of Zug, Switzerland.
To get an overview of the relevant contract type and its possible content in advance, you can ask the chatbot to produce a checklist or a sample contract.
«Please make me a checklist for a software licence agreement as SaaS».
«Please make me a sample contract for a software licence agreement as SaaS. Fill in the contract with your own facts».
Now we give the chatbot the comprehensive facts listed above and ask it to create a draft for a comprehensive licence agreement based on them.
«Please create a draft for a comprehensive licence agreement based on the following facts, which I will give you in a separate post. Copy the facts very carefully. Supplement the facts with any additional, necessary and/or recommendable provisions. Please do not use paragraph signs, but numbers. The parties’ signatures must include the place and date of signature.»
Facts as prompt: «[Facts of the case].»
Check the proposal and ask the chatbot to adapt the draft contract to your requirements if necessary.
Now we check the contract produced by a chatbot, e.g. ChatGPT, with another chatbot, e.g. Google Gemini.
«Please check the following draft contract for a SaaS licence for me, which I will give you in a separate prompt. Please make suggestions for corrections, changes and/or additions that are necessary and/or useful. Please take into account the following facts underlying the contract, which I will give you in the next prompt».
«Facts of the case: […]. Draft contract: […]»
In a further step, we ask the chatbot to incorporate the proposed points into the draft contract if we think they are also good and ask the chatbot to create a new draft.
«Very good suggestions! Please incorporate these into the existing draft and create a new, amended draft of the SaaS licence agreement. Please take the facts underlying the contract into account again».