WOBURN CONTRACTS ATTORNEY
Written contracts typically contain standard or “boilerplate” provisions that are included to minimize disputes over certain foreseeable situations that could arise. Below are some of the more common ones. Your contracts attorney can explain these further and advise you of whether they should be included in your contract.
An integration clause typically states that the contract is the complete and final agreement that supersedes any prior written or oral agreements. This is an important provision especially if lengthy negotiations occurred between the two parties and several writings exist concerning the subject matter of the contract. In addition, an integration clause may include a statement that the contract can only be modified by a new written agreement.
A counterparts clause in a contract is becoming more and more necessary because parties are rarely in the same location when executing a contract. A counterparts clause recognizes that the parties will be signing the agreement in separate locations, and integrates the separate signed copies into one agreement.
A severability clause, sometimes referred to as a savings clause, is intended to ensure the contract will continue to be enforceable if an aspect of the contract is determined to be invalid. A severability clause states the invalid portion of the contract will be severed from the remaining contract. Without this provision, if one portion of the contract is found to be invalid, the court can render the remainder of the contract invalid as well.
Prohibition of Assignment Clause
A prohibition of assignment clause prevents either or both parties from delegating their duties or assigning their benefits or rights under the contract to another party. However, the parties may specify that an assignment of the contract is permitted as long as both parties agree to the assignment.
A waiver provision typically provides that one party’s waiver of any one breach of any provision will not be deemed to be a waiver of any other breach of the same provision or any other provision. A waiver clause in a contract is meant to protect a party who allows the other party to not comply precisely with the terms of the contract. In addition, a waiver clause prevents the course of conduct between the two parties from superseding the enforceability of the actual terms of the contract.
A notice clause can be helpful if the parties will need to be in contact throughout the completion of the contract. A notice clause states how the parties will communicate with each other. For example, the parties could choose to communicate by email or fax. Even if the communication between the parties is expected to be limited, it can be a good idea to include a notice provision in your contract to prevent future problems.
Force Majeure Clause
A force majeure clause provides for an excuse of performance by either party due to an act of God. An act of God includes a natural disaster, war, or any event that is beyond the breaching party’s control. If a party is excused from performance due to an act beyond its control, the party will not be liable for any resulting harm to the other party because of the breach.
A warranty is a promise that particular facts stated by a party are true. For example, you may include several warranties about the condition of a product. A warranty can be either expressly stated or implied. However, a contracts attorney may warn you that an opinion is not a warranty and courts will not enforce a statement that appears to be merely stating an individual’s opinion, and is not an assurance of the quality of a product.
An indemnification clause states that one party will indemnify the other party if an expense occurs. This insulates one party from unexpected or expected liability. Indemnification is a common clause in construction contracts where the potential for liability is high if a subcontractor makes a mistake.
A confidentiality clause states that any information that one party learns about the other, whether it is about the goods that are the subject of the contract, or the management of the business, will not be shared with any outside source, and will remain confidential. This is an important provision to include if the subject of the contract includes trade secrets or a product that is unique.
In addition to these provisions, contracts typically contain other standard provisions that are designed to deal with how a dispute will be resolved should one arise.
A contracts attorney at Ionson Law can create customized templates for transactions that your business may be involved with repeatedly. Then you will be able to prepare similar documents by yourself, saving on your legal fees. We can also draft contracts, from simple to complex, that will accurate memorialize the terms of your agreement and protect your rights. Contact us today at (781) 674-2562 to setup a free consultation to discuss your contract needs.