Boiletplate and Execution Clauses

Question 1

Typical Boilerplate Clauses

Answer 1

JURISDICTION
- which country’s courts will hear a dispute

GOVERNING LAW
- in line with which law should a court (of the selected jurisdiction) interpret the Agreement?

ENTIRE AGREEMENT

• see separate entry for 4 parts
• prevents party from liaiblity for any statements or representations except as expressly set out in the Agreement.

SURVIVAL
- obligations which last forever / continue after contract - e.g. confidentiality, non-compete, outstanding payments, governing law

SEVERANCE

• if one clause becomes unlawful, doesn’t make the whole contract unenforceable
• normally coupled with clause providing that the offending clause should be automatically modified so as to be enforceable

NOTICE
- manner (e.g. writing?), where to, when deemed delivered, received etc.

TERMINATION

• voluntary termination rights
• automatic grounds for termination

FORCE MAJUERE

• events outside the parties’ control
• may be that performance is suspended for a period first, and if still unable to perform after end of that period, contract will terminate.

EXCLUSION OF C(RTP)A 1999

WAIVER
- a waiver of part should not constitute waiver of the whole

NON-ASSIGNMENT/ASSIGNMENT

• may agree to allow assingment intra-group or to a named person(s).
• often qualified (e.g. without consent, such consent not to be unreasonably withheld)

EXCLUSION OF PA 1890
- to prevent partnership from arising impliedly

INTERPRETATION
- languages, definitions, if statutes change, and said statute doesn’t state expressly that it’s replacing the older Act, can say in interpretation clause whether old Act should stand, or new Act prevails, etc.

Question 2

Valid Entire Agreement Clause

(Thomas Wooter case)

(1) This is entire and only agreement
(2) No other remedy
(3) Only remedy is breach of contract under these terms
(4) Doesn’t exclude liability for fraud

Answer 2

For an entire agreement clause to be valid, needs the following 4 constituent parts. These can be in one clause together, or dotted around the whole agreement - but ALL must be present.

(1) This Agreement contains the entire and only agreement between the parties and superseds all previous agreements between the parties respecting the subject matter of this Agreement.
(2) Each party acknowledges and agrees that in entering into this Agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, undertaking or warranty, whether oral or in writing, save as are expressly set out in this Agreement.
(3) Each party acknowledges and agrees that the only remedy available to it for breach of this Agreement shall be for breach of contract under the terms of this Agreement.
(4) Nothing in this clause shall limit or exclude liability for fraud.