As one of their assignments, last week my students at Notre Dame Law School analyzed the verb structures in the “SOW terms & conditions agreement” that goes with Cisco’s advanced services statement of work (here). Obviously, I had to perform an analysis of my own. One thing that caught my eye was use of nor shall in the following:
The receiving party shall at all times keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by the disclosing party under the SOW, nor shall the receiving party disclose any such Confidential Information to third parties without the disclosing party’s written consent.
I of course immediately looked for it on EDGAR. It’s used extensively. So what to make of it?
On the one hand, it’s unobjectionable. According to Garner’s Modern American Usage, “Nor, like neither, may begin a sentence. It must follow either an express negative or an idea that is negative in sense.” I take issue with one aspect of Garner’s analysis: in contracts, nor shall, preceded by a comma, is invariably used to continue a sentence.
But if you want to express prohibition, then instead of echoing prohibition expressed earlier in the sentence, using an awkward structure that places the auxiliary (shall) before the subject and the main verb, it would be clearer to use language of prohibition . That would have the added benefit of avoiding using shall in a way that fails the “has a duty” test. Furthermore, nor shall is conducive to run-on sentences.
So here’s my version of the extract above, bearing in mind that I’ve made no attempt to fix the remaining problems:
The receiving party shall at all times keep in trust and confidence all such Confidential Information. Without the prior written consent of the disclosing party, the receiving party shall not use such Confidential Information other than as expressly authorized by the disclosing party under the SOW and shall not disclose any such Confidential Information to third parties.
Having become aware of this usage, I of course looked for it on EDGAR. It’s used extensively. Here are a couple of extracts from EDGAR to which I’ve applied the same sort of fix as I recommend above, while holding my nose:
The rights accruing to a Shareholder under this Section 8.4 shall not impair any other right to which such Shareholder may be lawfully entitled, nor shall anything herein contained restrict [read . Nothing herein contained restricts] the right of the Trust or any Series or Class thereof to indemnify or reimburse a Shareholder in any appropriate situation even though not specifically provided herein.
No holder, as such, of any Right Certificate shall be entitled to vote, receive dividends, or be deemed for any purpose the holder of the Preferred Shares or any other securities of the Company that may at any time be issuable on the exercise of the Rights represented thereby, nor shall anything contained in this Agreement or in any Right Certificate [read . Nothing contained in this Agreement or in any Right Certificate will] be construed to confer upon the holder of any Right Certificate, as such, any of the rights …
Landlord shall not have any liability to Tenant whatsoever as a result of Landlord’s failure or inability to furnish any of the utilities or services to be furnished by Landlord hereunder, nor shall such failure or inability [read . No such failure or inability will] be considered an eviction, actual or constructive, of Tenant from the Premises.