The Tool Desk
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This article reflects U.S. federal banking sources available on October 13, 2026. The 2023 interagency third-party guidance is supervisory guidance to tailor to the relationship; it is not a universal AI-clause checklist. The September 2026 replacement guidance remains a proposal, and the April 2026 revised model-risk guidance expressly excludes generative and agentic AI.
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Start with the bank’s risk assessment
Before negotiating wording, document what the AI service does, what could go wrong, and how a failure would affect customers, the bank, and regulators. The Federal Reserve, FDIC, and OCC’s 2023 Interagency Guidance on Third-Party Relationships: Risk Management treats planning, due diligence, contracting, monitoring, and termination as one lifecycle. Contract protections should therefore match the service’s risk and complexity.
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Outsourcing does not transfer the bank’s obligations. The agencies state that “A banking organization’s use of third parties does not diminish its responsibility to meet these requirements to the same extent as if its activities were performed by the banking organization in-house.” That principle should guide every negotiation: a vendor’s reputation, certification, or “black box” description is not a substitute for the bank’s own oversight.
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Classify the relationship before setting terms
Use a documented risk tier rather than applying identical clauses to every AI tool. A model that drafts internal summaries generally presents a different exposure from an agent that can approve transactions, contact customers, or write to a core system.
- Data sensitivity: Identify whether the service handles customer information, confidential bank information, payment data, authentication material, or public data.
- System privilege: Record every interface, credential, API, production environment, and human approval point the vendor can reach.
- Business criticality: Estimate customer and operational impact if the service is unavailable, inaccurate, manipulated, or abruptly withdrawn.
- Dependency and concentration: Consider the vendor, its subcontractors, common infrastructure, and whether several critical services rely on the same provider.
- Transparency: Assess whether the vendor can provide timely information about data, testing, changes, incidents, and outcomes.
- Exit feasibility: Determine whether data, prompts, configurations, outputs, and integrations can be returned and moved to another solution.
These factors are an editorial way to apply the agencies’ risk, information, performance, subcontractor, and termination considerations; they are not a regulatory scoring formula.
Define the AI service, roles, and change authority
The agreement should make the service understandable to a person who did not negotiate it. Attach a current description of the model or AI-enabled function, interfaces, supported use cases, exclusions, deliverables, support hours, maintenance, and customer-service commitments.
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Describe permitted use and prohibited use
State what the bank may ask the system to do and what it may not do. For example, distinguish drafting a credit memo from making a final credit decision; identify whether outputs are advisory, customer-facing, or capable of triggering an automated action. Define required human review, approval thresholds, logging, and segregation of duties where the service can affect accounts, payments, fraud actions, or regulatory reporting.
Allocate responsibilities and dependencies
List the bank’s obligations—such as providing accurate inputs, configuring access, reviewing outputs, and maintaining a fallback process—and the vendor’s obligations for hosting, model operation, support, monitoring, and correction. Identify dependencies on cloud infrastructure, data suppliers, plug-ins, and subcontractors. Require the vendor to identify material subcontractors and explain which functions or data they receive.
Control material changes
Document who can change prompts, configurations, models, training data sources, safety controls, or service components. Negotiate advance notice, testing cooperation, documentation, and approval or rollback rights for changes that could materially affect risk, performance, data handling, or compliance. The reviewed guidance does not prescribe a universal AI change-notice clause; the appropriate trigger and notice period should follow the use case.
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Set data, confidentiality, and intellectual-property rules
Do not assume standard online terms settle ownership or permitted use. The contract should identify each category of information the vendor may access and impose purpose limits that survive amendments and product upgrades.
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- List bank, customer, employee, transaction, telemetry, prompt, output, and support data that may enter the service.
- State whether each category may be stored, for how long, in which locations, and for what operational purpose.
- Prohibit use for training, product improvement, advertising, profiling, or disclosure beyond service delivery unless the bank expressly authorizes it and the risk assessment supports it.
- Require return or secure deletion at contract end and on an agreed schedule, with evidence of deletion where appropriate.
- Address backups, disaster-recovery copies, legal holds, and data retained by subcontractors.
Protect ownership and licensing
Define ownership and permitted licensing of bank data, prompts, configurations, generated outputs, evaluation sets, documentation, and other intellectual property. Address whether the vendor may use the bank’s name, marks, materials, or anonymized derivatives. Clarify rights to retrieve data and outputs in usable formats and to continue using bank-owned materials during transition.
Generated content can raise uncertain rights questions in some jurisdictions and use cases. The contract should allocate responsibility for third-party claims, describe the bank’s license to use outputs, and identify any vendor restrictions. Those provisions should be reviewed by counsel for the governing law and the actual data involved.
Contract for security and privacy controls
AI services can expose both customer information and bank systems. The Federal Reserve’s Interagency Guidelines Establishing Information Security Standards state that institutions must require relevant service providers by contract to implement appropriate measures and, where indicated by the risk assessment, monitor them. The exact safeguards depend on applicable law, architecture, and risk.
Make controls and evidence specific
Rather than accepting a generic promise to maintain “industry-standard security,” identify the controls the bank needs and the evidence it will receive. Depending on the arrangement, this may include access management and least privilege, encryption, key handling, network segregation, secure development, vulnerability management, logging, backup and recovery, personnel screening, physical security, privacy controls, and testing of incident response.
Require the vendor to provide current control reports, testing summaries, relevant policies, and remediation status within an agreed time. A certification can support diligence but does not answer whether the controls cover this service, this data, and the subcontractor chain.
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Set incident notification and cooperation
Define what constitutes a security, privacy, integrity, availability, or model-behavior incident; how quickly the vendor must notify the bank; what facts the initial notice must contain; and how updates, evidence preservation, customer communications, and regulatory cooperation will work. Allocate responsibility for containment, forensic support, notification analysis, and restoration. Set escalation contacts that operate outside ordinary help-desk channels.
Require performance measures that reflect customer outcomes
The contract should give the bank enough information to determine whether the service remains accurate, reliable, compliant, and fit for purpose. Do not reward throughput or speed if doing so encourages unsafe automation or poor customer outcomes.
Choose use-case-specific measures
Potential measures include availability, response time, error rates, escalation rates, override rates, data-quality failures, false positives and negatives, complaint patterns, and outcome differences across relevant populations. A customer-service assistant may need quality sampling and unresolved-escalation measures; a fraud tool may need detection performance, loss outcomes, and review workload. The sources reviewed do not establish a universal AI metric set or threshold.
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Specify report frequency, format, responsible personnel, access to underlying records, and thresholds that trigger investigation or a corrective-action plan. Require timely correction of material defects, documented root-cause analysis, retesting, and confirmation that remediation worked. Preserve the bank’s right to suspend a feature, require human review, or invoke a fallback when performance or compliance deteriorates.
Secure information, audit, and regulatory-access rights
Oversight is ineffective if the bank cannot obtain relevant information. The agreement should require timely, accurate, and sufficiently comprehensive data about operations, controls, performance, incidents, subcontractors, and compliance.
Negotiate practical audit access
Define how the bank can inspect records, interview responsible personnel, review testing, and obtain relevant materials. Address remote reviews, on-site visits, independent assessments, sampling, notice, frequency, confidentiality, and allocation of reasonable costs. If the vendor offers only a pooled report or refuses access to material evidence, record the limitation during diligence and decide whether compensating controls genuinely reduce the residual risk.
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Preserve examination and oversight access
Make clear that the bank can provide relevant vendor information to its auditors, regulators, and other authorized oversight bodies. Confidentiality provisions should not prevent regulatory examination or legally required disclosure. The bank should not promise a regulator access that the vendor contract makes impossible.
Allocate compliance, issue handling, and remediation duties
Identify which party performs each compliance activity and which party supplies evidence. The bank remains accountable for its regulatory obligations, while the vendor should be required to support them within its area of control.
- List laws, regulations, guidance, contractual standards, and internal policies relevant to the service and data.
- Require notice of actual or suspected noncompliance, control deficiencies, investigations, enforcement contact, and material complaints.
- Set escalation levels, response times, cooperation duties, and management reporting for significant issues.
- Require corrective-action plans with owners, deadlines, verification, and consequences for missed milestones.
- Permit the bank to restrict use, require additional controls, or suspend the service when risk cannot be controlled promptly.
Negotiate price, liability, indemnity, and insurance deliberately
State fees, usage charges, implementation work, data-transfer costs, change requests, special audits, incident support, and transition services. Ambiguous “reasonable expenses” can become an obstacle when the bank needs urgent evidence or an exit.
Assess liability caps and exclusions against plausible losses, including confidentiality breaches, regulatory costs, operational interruption, customer remediation, intellectual-property claims, and intentional or reckless conduct. Consider indemnities for risks the vendor controls and whether insurance types and limits fit the exposure. The interagency guidance supplies no standard cap, indemnity, or insurance amount; these are negotiated decisions that should reflect the bank’s risk assessment and applicable law.
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Exit rights are useful only if the bank can operate after exercising them. Plan for outage, insolvency, ownership change, repeated performance failure, security events, legal restrictions, contract expiration, and a regulator-directed termination in the circumstances described by the guidance.
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Define ordinary and immediate termination rights, cure periods, suspension authority, and notice mechanics. Include workable periods for an orderly move, while preserving rapid action for an acute threat. Address termination without penalty when required by the applicable supervisory circumstances.
Make transition deliverables concrete
- Return bank data, prompts, configurations, logs, evaluation sets, outputs, and documentation in usable formats.
- Provide reasonable migration assistance, knowledgeable personnel, interface documentation, and continued support for a defined period.
- Identify who pays transition, extraction, and re-platforming costs under each termination scenario.
- Maintain security and confidentiality during the transition and certify deletion afterward.
- Where applicable, preserve access to software or source materials under clearly defined conditions.
Test the exit plan for a high-risk service before a crisis. A theoretical right to retrieve data is not a practical exit if the format is proprietary, the vendor withholds configuration details, or no replacement process exists.
Use model-risk guidance carefully for AI arrangements
On April 17, 2026, the OCC, Federal Reserve, and FDIC issued revised model-risk guidance. It is risk-based and non-prescriptive. For vendor products, it discusses understanding conceptual soundness, design, development data, parameters, and performance, along with monitoring and outcome analysis. Customized vendor models should have their customizations documented and evaluated as part of validation.
That guidance expressly excludes generative AI and agentic AI because those technologies are novel and rapidly evolving. It therefore does not tell a bank which clauses to use for a generative assistant or an agent that takes actions. For those systems, banks can still negotiate information rights, change notices, testing cooperation, output monitoring, human controls, and exit support as risk-based protections—but should not present them as requirements imposed by the 2026 model-risk guidance.
“Vendor model” and “black box” are not conclusions. Determine what information the bank needs to oversee the actual product and what the vendor will provide. If essential information is unavailable, document the limitation, identify credible compensating controls, and decide whether the remaining risk is acceptable before signing.
Keep the contract under review after signature
Execution is the beginning of oversight, not the end. Assign an owner for the relationship and review whether contractual protections still address the service, controls, data, subcontractors, incidents, and regulatory expectations. Revisit terms when the vendor changes models, ownership, hosting, data use, or critical subcontractors, or when the bank changes the use case.
Higher-risk relationships may warrant board awareness or approval as appropriate, independent risk review, and legal counsel. The agencies’ September 11, 2026 proposal to replace existing third-party guidance emphasizes tailoring to relationship risk and to the bank’s size, complexity, and risk profile. It remains a proposal as of October 13, 2026; the OCC lists comments due November 16, 2026. Do not treat proposed language as final requirements.
A practical negotiation sequence
- Describe the use case: Map inputs, outputs, users, decisions, human approvals, integrations, and failure consequences.
- Tier the risk: Rate data sensitivity, access, criticality, concentration, transparency, performance impact, and exit difficulty.
- Complete diligence: Obtain information on ownership, financial and operational capacity, security, privacy, subcontractors, model or product design, testing, incidents, and continuity.
- Draft tailored terms: Cover scope, data, IP, controls, reporting, audit, compliance, liability, insurance, continuity, and termination at a level matching the tier.
- Resolve information gaps: Negotiate access or document compensating controls and residual risk; do not hide a material limitation in boilerplate.
- Test operations: Confirm incident contacts, reporting, change approval, fallback procedures, data extraction, and transition assistance.
- Approve and monitor: Obtain the required legal, risk, management, or board approvals, then track performance, issues, changes, and remediation throughout the relationship.
Questions to ask when comparing AI vendors
| Comparison area | Questions for the bank |
|---|---|
| Data and access | What information enters the service, where is it stored, and what systems or credentials can it reach? |
| Criticality | What customer, compliance, or operational harm follows an outage or materially wrong output? |
| Dependency | Which subcontractors, infrastructure providers, or shared components could create concentration risk? |
| Transparency | How quickly and completely will the vendor provide performance, incident, change, and control information? |
| Security and remediation | What evidence supports the controls, and who fixes deficiencies by what deadline? |
| Outcomes | Which measures show that the service remains accurate, reliable, compliant, and fit for this use? |
| Exit | Can the bank retrieve data and configurations, operate a fallback, and transition without unreasonable cost or delay? |
This comparison helps the bank make a documented, risk-based decision; it is not a regulatory vendor-rating method.
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What the current guidance does—and does not—establish
- Established: The 2023 interagency guidance covers the third-party lifecycle and identifies contract considerations such as scope, data, security, performance, audit, compliance, liability, continuity, and termination.
- Established: Federal Reserve information-security guidelines address contractual safeguards and monitoring for service providers that access customer information.
- Established: The 2026 revised model-risk guidance discusses vendor products but is non-prescriptive and excludes generative and agentic AI.
- Not established: No universal AI clause wording, performance threshold, liability cap, insurance amount, audit format, or model-change notice period.
- Not final: The September 2026 replacement third-party guidance is still proposed as of October 13, 2026.
Institution-specific language should be reviewed by qualified banking counsel, compliance, information security, model-risk personnel where applicable, and the business owner. The bank’s governing law, charter, data categories, cross-border arrangements, and supervisory regime can change the required analysis.
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