Last week, a reader sent me the following sentence from a services agreement: Vendor hereby accepts such appointment and agrees to actively and continuously exert its prompt, substantial, and persistent efforts, on Company’s behalf, to provide the Services. This extract—the lamest thing I’ve seen since, oh, last week—has already led to my post on actively (here). But two other issues … Read More
I noted with interest this article in Corporate Counsel by Kevin Jacobs and Benjamin Sweet, of the law firm Baker Botts. It’s entitled “‘Force Majeure’ in the Wake of the Financial Crisis.” I recommend that you read the article, but here’s the gist of it: Thus far, courts continue to resist applying this contractual provision to even the most severe economic … Read More
A client recently suggested that I add a mediation provision to a master services agreement that I’ve been preparing for them. While pondering that idea, I happened upon this item in a newsletter by the law firm Smith, Gambrell & Russell, LLP. (Why no author specified?) It captures why I ultimately recommended that we not include a mediation provision. Here’s the … Read More
Jane K. Winn, professor at the University of Washington School of Law, recently asked me the following question: I’m trying to create an exercise for my first-year contracts class that would teach the students how to draft a good “Battle of the Forms” UCC § 2-207 term to block application of the counterparty’s boilerplate. The “Battle of the Forms” problem … Read More
I noticed that Corporate Counsel has published another article by Eric Fishman, a partner at Pillsbury. (This time his co-author is one of his partners, Robert James.) It’s entitled Drafting a Better Severability Clause; go here for a copy. (Go here and here for my posts about two other articles by Mr. Fishman.) This most recent article provides basic but helpful … Read More
In this post last month, I offered my revised “force majeure” language, then revised it further as it was brutalized by readers. *sobs* In case force majeure hasn’t outstayed its welcome among you all, I’d like to run an idea by you. The language in the previous post begins as follows: If a Force Majeure Event prevents a party from … Read More
[Updated 15 May 2022 to aadd “in the first sentence of ” to section 12.4(a).] [Updated January 18, 2014, to add to 12.4(b) “or other change in general economic conditions”.] [Updated yet again August 24, 2013, to reflect further comments emailed me by A. Wright Burke.] [Updated August 20, 2013, to reflect changes prompted by A. Wright Burke’s comment.] [Updated … Read More
Should a services agreement provide for a term? It depends. Imagine that Acme engages me, as an independent contractor, to service every Sunday the fleet of Segways at Acme’s headquarters. Acme asks me to sign a contract, which provides for a term of one year. Including a term makes sense, in that having Acme instead make an open-ended commitment would … Read More
The June/July 2013 issue of The Advocate, published by the Idaho State Bar, contains my article It’s Time to Get Rid of the “Successors and Assigns” Provision. Go here for a copy of the article; go here for the entire issue. This article is a mash-up of three blog posts I’ve written on the subject over the years. My thanks … Read More
I recently saw in a contract the following provision specifying drafting conventions: Reference to any English legal term shall, in respect of any jurisdiction other than England, be deemed to include what most nearly approximates in that jurisdiction to the English legal term. The contract in question is governed by English law. It follows that if the contract uses, say, … Read More
