The first generation of software diligence asked whether the target owned its code. The next asks something stranger: what exactly has the target’s software been doing on its own? In 2026, Florida acquirers are increasingly buying businesses whose operations run through AI agents — systems that answer support tickets, quote prices, chase receivables, order inventory, and in some shops approve refunds and sign vendors up. When the workforce is partly synthetic, the diligence stack has to change, because the classic questions — who are your key employees, where are your contracts, who has signing authority — all have new answers.
The Target’s Org Chart Now Includes Software
Start with a mundane observation that has sharp deal consequences: an agent that quotes prices and confirms orders is exercising delegated authority, just as an employee would — but it does not show up in the employee census, the payroll register, or the org chart the seller put in the data room. If diligence maps only humans, a buyer can miss that a meaningful share of the company’s commitments are made by systems nobody supervises in the way the diligence narrative assumes.
The first request in an agentic-target deal is therefore an agent inventory: every autonomous or semi-autonomous system, what it is permitted to do, what tools and accounts it can touch, what dollar thresholds or approval gates constrain it, and who owns its configuration. Sellers rarely have this document. Making them build it is itself diagnostic — a target that cannot inventory its agents cannot credibly represent what those agents have been doing.
Yes, the Agent’s Contracts Bind the Company
Buyers sometimes hope there is a legal escape hatch: perhaps commitments made by a bot are not really contracts. There is no reliable hatch, and diligence should assume the opposite. Florida’s Uniform Electronic Transactions Act, section 668.50, Florida Statutes, expressly contemplates automated transactions and recognizes contract formation by “electronic agents” — programs that act without human review — providing that a contract may be formed by the interaction of electronic agents even if no individual reviewed the resulting terms. The federal E-SIGN Act, 15 U.S.C. § 7001(h), points the same way: a contract may not be denied legal effect solely because its formation involved one or more electronic agents, so long as the agent’s action is legally attributable to the person to be bound. That attribution requirement is not a loophole — it is the mechanism. An agent acting within the authority the business gave it binds the business, much as an employee would, with the ordinary law of contract and agency supplying the rest.
The cautionary illustration everyone cites is Moffatt v. Air Canada, the 2024 British Columbia Civil Resolution Tribunal decision holding an airline responsible for its chatbot’s misstatement about fare policy, rejecting the airline’s argument that the bot was a separate actor answerable for its own words. It is a Canadian tribunal decision — persuasive rather than binding on a U.S. court — but the reasoning travels, and it tracks how the attribution principle already works under Florida and federal law: a business owns its agents’ representations and commitments, which means a buyer inherits them, including the ones nobody has surfaced yet.
For deal purposes, that converts into a rep the market did not need five years ago: no agent-made commitments outside disclosed parameters — no pricing promises, refund policies, discounts, or vendor terms created by autonomous systems beyond what is scheduled.
The Diligence Stack, Rebuilt
An agentic target deserves its own workstream alongside IP and IT. The core requests:
- Agent inventory and permission scope — every autonomous system, the accounts and tools it can act through, and the human owner of each.
- Credential custody — where API keys, wallet or banking credentials, and admin access live; who can rotate them; and what happens to access at closing. Credentials held in a departing founder’s personal accounts are the modern version of the key-man problem.
- Action logs — whether the target retains records of what its agents did, for how long, and in what form. Logs are both the audit trail for reps and the evidence file for whatever went wrong before closing.
- Model and vendor dependency — which third-party model providers the business depends on, what the contracts say about deprecation, rate limits, price changes, and data use, and whether any core workflow dies if a single vendor changes terms.
- IP position in the configuration layer — prompts, workflows, fine-tuned models, and evaluation sets are where the enterprise value lives; diligence should confirm the target owns or has rights to them, and that contractors who built them assigned what they built.
- Incident history — agent errors, customer complaints traceable to automated decisions, and any regulatory contact. Under statutes like Florida’s data-breach law, section 501.171, automated systems touching personal data are compliance surface, not just tooling.
Reps, Escrows, and the Allocation of Agent Risk
Diligence findings then flow into paper. Beyond the no-undisclosed-commitments rep, agentic targets are producing a recognizable set of provisions: a systems rep listing material AI systems and warranting the inventory’s accuracy; a logs rep warranting that action logs have been retained consistent with stated policy and not altered; a compliance rep covering the agents’ handling of personal data and automated communications; and vendor-consent coverage where model or platform agreements have change-of-control triggers.
Where the seller cannot cleanly make those reps — common, because the practices grew faster than the controls — the deal answer is the usual toolkit applied to a new subject: special indemnities for pre-closing agent conduct, escrow sizing that reflects the audit gap, and post-closing covenants requiring the seller’s principals to assist in reconstructing what the systems did.
Closing Mechanics: Who Holds the Keys at 12:01
The closing checklist changes too. In a human business, control transfers through resignations, board consents, and signature cards. In an agentic business, control transfers through credentials: model API keys, orchestration platform admin rights, the accounts payable agent’s banking access, the support agent’s ability to speak to customers in the company’s name. A buyer who wires funds while the seller’s founder still holds root credentials has not actually taken control of the business — and an agent that keeps acting on stale instructions during a messy handover is making commitments the buyer now owns.
Well-run agentic closings now include a credential transfer schedule executed at closing, an agreed freeze or supervision window for high-authority agents around the closing date, and immediate rotation of keys — the same discipline crypto deals learned about wallets, applied to operational systems.
Practical Takeaways for Florida Buyers and Sellers
- Ask for the agent inventory on day one; if it does not exist, treat building it as a closing condition, not a post-closing project.
- Assume agent-made commitments can bind the company under section 668.50 and E-SIGN when the agent acted within the company’s authority — so diligence what the agents were authorized to do, then diligence what they actually did.
- Put credential custody on the closing checklist with the same seriousness as payoff letters: schedule, transfer, rotate.
- Draft the new reps — inventory accuracy, no undisclosed agent commitments, log integrity, vendor compliance — and back the gaps with special indemnities or escrow rather than hoping.
- Sellers: run this diligence on yourself a quarter before going to market. The buyer’s team will run it either way, and controls built in advance read as value, not as cleanup.
Talk to Florida Deal Counsel on Agentic-Target Diligence
Montague Law advises buyers and sellers of technology-forward Florida businesses on diligence, deal structure, and the reps that allocate machine-made risk — including deals that involve AI agents and digital-asset rails — from offices in Fernandina Beach and Coral Gables. If your target’s workforce is partly software, call 904-234-5653 or schedule a consultation before the LOI locks the structure.
Frequently Asked Questions
Are contracts made by a company’s AI agent legally binding?
Generally yes. Florida’s Uniform Electronic Transactions Act, section 668.50, recognizes contract formation through “electronic agents,” and the federal E-SIGN Act (15 U.S.C. § 7001(h)) provides that a contract cannot be denied effect solely because an automated system formed it, so long as the agent’s action is legally attributable to the person to be bound. When an agent acts within the authority the business gave it, that attribution ties the conduct to the business that deployed it — and to the buyer who acquires that business.
What is an agent inventory and why do buyers ask for one?
It is a schedule of every autonomous or semi-autonomous system the target runs — its permissions, accounts, spending or approval authority, and human owner. Buyers request it because agents do not appear in the employee census, yet they make commitments the acquired company must honor.
What new reps and warranties apply to AI-driven businesses?
Emerging practice includes reps on the accuracy of the AI systems inventory, the absence of undisclosed agent-made commitments, retention and integrity of action logs, and the agents’ compliance with data and consumer protection laws — often backed by special indemnities or escrow where the target’s records are thin.
What happens to AI agents at closing?
Control transfers through credentials, not just signatures. Well-run closings include a credential transfer schedule, rotation of API keys and admin access at or immediately after closing, and a supervision or freeze window for high-authority agents during the handover.
Does this apply to small Florida businesses, or just tech companies?
Increasingly to both. Service businesses, e-commerce operators, and professional practices across Florida run support, billing, and purchasing through agentic tools — and any acquirer of such a business inherits what those systems have committed to, whether or not anyone calls it a “tech company.”
This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Consult a licensed attorney about your specific situation.
