Today I noticed this tweet:
VCs: "don't you dare send an NDA before meeting with us or you're a joke. ideas are worthless."
Also VCs: "welcome to our office please use this nice iPad to sign a one-way NDA. our ideas are worth everything." pic.twitter.com/U8kxkTNcRM
— Jonathon Barkl (@jonathonbarkl) January 29, 2020
As a fan of found contract text, I had a look at this introductory clause. It’s traditional dreck, but it also allows me to make a point I haven’t made before: If you create a collective defined term (let’s assume it’s for referring to individuals or entities), don’t define it in the singular with the definite article the (to use the example in the tweet, the “Discloser”).
The problem with this practice is that masks that each time you refer to the collective defined term, you’re not referring to a single person but to multiple persons.
There’s no avoiding the potential for confusion when you use a collective defined term, even in the plural. For example, does Acme shall notify the Shareholders mean Acme must notify each shareholder, or are the shareholders acting collectively? But there’s no point in adding to the confusion.
When there’s a template, as in a lease, where sometimes one tenant leases the property and sometimes two or more, is there a way to have a template that covers both situations without having to change pronouns throughout the text every time, or have two templates?
What is the collective wisdom about referring to both parties as “Licensor” and “Licensee” in a cross-license agreement when the licenses granted are identical?
Not exactly sure what you mean, but making a guess, one option is to have two separate agreements between Acme and Widgetco. In the first, Acme gives Widgetco a licence to exploit patent ABC. In the second, Widgetco gives Acme a licence to exploit patent XYZ. In that scenario, you may as well dispense with ‘Licensor’ and ‘Licensee’ and use ‘Acme’ and ‘Widgetco’, and limit the use of the functional titles to template agreements for recurrent contracts where it would be inconvenient to ‘personalise’ every party reference throughout.
Alternatively, you could use a single cross-licensing agreement to express both parts of the deal. Again, using actual party names (Acme, Widgetco) seems best. If you’re seeking to avoid spelling out all the identical details of the two licenses twice, with the only difference being reversed names, maybe you could use an introduction like: ‘Acme hereby grants Widgetco the following licence to exploit patent ABC and Widgetco hereby grants Acme an identical licence in patent XYZ: (1) To do alpha; (2) To do beta’, etc.
I can’t see when you would ever want to refer to *both* parties to an agreement as ‘Licensor’ and ‘Licensee’. It would make them hard to tell apart. As a result, I think I must have misunderstood your question, so my response, as I said, is based on a guess about what you meant. Hope the response is useful. I make no claim to wisdom, least of all collective wisdom. Good luck.