Blog

Position of “The Following” in Introductory Text Preceding a Set of Enumerated Clauses

23 February 201621 February 2016 by Ken Adams

The basic unit of contract prose is, surprise surprise, the sentence. One issue of contract layout is that of aggregation—how do you group sentences into sections and, if necessary, articles? The other is that of division—when is it appropriate to break up a sentence? Division involves enumerated clauses. A contract sentence might consist of introductory text and a series of parallel elements. It might make … Read More

Reminder: “Drafting Clearer Contracts” Seminars in Geneva in April

15 February 2016 by Ken Adams

And now, a word from our sponsor: On 5 April and 7 April, I will be giving “Drafting Clearer Contracts” seminars in Geneva, Switzerland, at the offices of the international law firm Orrick. For more information, go here. To register, go here. These seminars will be particularly intime, as the room we’ll be using holds only a dozen people. And that room is … Read More

“Provisions”

15 February 2016 by Ken Adams

The word provision is used to describe something in a contract, but without being specific—I don’t think you can say it refers to a sentence or to a section. You can use provision in a contract, usually in the plural. Here are two examples: any additional shares of Common Stock issued and issuable in connection with any anti-dilution provisions in … Read More

A Proponent of “Tested” Contract Language

23 February 201613 February 2016 by Ken Adams

Today, thanks to a tweet by @360venturelaw, I stumbled upon a blog post entitled “Famous Last Words: ‘The Shorter the Better.’” It’s by Mike Stanczyk, a corporate attorney based in Syracuse, New York. It’s a sensible post, but Mike wraps it up with the following point: In closing I will say that when possible I prefer and do use “plain English” agreements. However, its … Read More

“No Implied Licenses”? No Thanks

13 February 201612 February 2016 by Ken Adams

Consider the following: No Implied Licenses. Except as expressly set forth in this Agreement, neither Party grants any license under its intellectual property rights to the other Party. First, let consider what an implied license is. Here’s what Melvin F. Jager, Licensing Law Handbook § 1:25 (2015) has to say (citation omitted): Under this implied license theory, the unrestricted sale of a patented … Read More

Expressing Licensee Liability for Sublicensee Misconduct

12 February 2016 by Ken Adams

If a contract provision isn’t the focus of the deal, there’s a good chance people won’t have given it much thought, so there’s a good chance that it doesn’t make sense. Consider the notion of licensee liability for a sublicensee’s misconduct. Straightforward, right? But how do you express it? I scattered some roach bait traps on EDGAR and looked at (and then … Read More

“Hereinbelow” (No Prizes for Guessing What the Fight Was About)

9 February 2016 by Ken Adams

We’ve had occasion to explore the risk you run when a contract refers to itself in confusing ways. See this post about herein; see this post about hereunder; see this post about except as provided below. Well, if a lesson is worth learning three times, it’s worth learning yet again. So thanks to relentless lead generator Steven Sholk, I present you, … Read More

Contracts As a Vehicle for Irreverence

9 February 2016 by Ken Adams

Today I saw the following tweet: Amazon Web Services terms and conditions now include a zombie clause. pic.twitter.com/7D6gAKeDLu /cc @NeilDavidson — Software Tools (@softwareverify) February 9, 2016 This reminded me of an experiment in London in which the terms of use of a WiFi hotspot promised free WiFi but only if “the recipient agreed to assign their first born child to … Read More

Invoking Provisions That Are “Intended to Survive Termination”

9 February 2016 by Ken Adams

I’m no fan of saying in a contract that certain provisions survive termination. See MSCD 13.642 and this 2006 post. Heck, even the Delaware Chancery Court noticed that. But if simple survival isn’t enough, you can layer futility upon futility. At the suggestion of a reader, I dug up the following: Those provisions that by their nature are intended to … Read More

A Lunchtime CLE Session Based on “The Structure of M&A Contracts”

8 February 2016 by Ken Adams

You might have seen my post earlier today about my book The Structure of M&A Contracts. In writing it, I was reminded that a few years ago I did a public seminar based on the book. And I did a seminar at a law firm. Heck, I even did a webcast. But I quickly dropped the seminars. What’s great about my “Drafting … Read More

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