Hot on the heels of my notion of “language of intention” comes a candidate for yet another new category of contract language: language of recommendation.
Consider the following extract from a stock option agreement (emphasis added):
As a result, the Company strongly recommends that the Grantee not rely on the information in this Appendix as the only source of information relating to the consequences of his or her participation in the Plan because such information may be outdated when the Restricted Stock Units become vested and/or when any Shares acquired upon vesting and settlement are sold. In addition, the information contained herein is general in nature and may not apply to the Grantee’s particular situation. As a result, the Company is not in a position to assure the Grantee of any particular result. The Grantee therefore is advised to seek appropriate professional advice as to how the relevant laws in his or her country may apply to his or her particular situation.
And the following is from a “license and development agreement”:
System commissioning and QA are the sole responsibility of Customer, and Customer is advised to perform QA on a regular and ongoing basis.
But it’s relatively rare for a contract to contain a recommendation. When you recommend something, you’re not stating a fact, you’re pointing out how the other party can mitigate risk. My inclination is to recast a recommendation by Party X as an acknowledgment by Party Y, so as to make the legal implications clearer.
What do you think?