I received the following inquiry from longtime reader Vance Koven: I’ve been trying to find someplace in MSCD or your blog where you address the couplet “in and to,” which usually dribbles out after “right, title and interest” in referring to, say, a claim to or a license of intellectual property. Came up empty, yet I was sure it was … Read More
A participant at my recent Canberra seminar made me aware of “self-deleting” contract provisions. I gather that it’s a standard notion in government contracts. Here’s an example: CLAUSES MADE INAPPLICABLE BY THE TYPE OF ORDER OR CONTRACT ARE SELF-DELETING. And another: THE FOLLOWING CLAUSES ARE INCORPORATED BY REFERENCE AND ARE SELF-DELETING IF NOT APPLICABLE: “Self-deleting” would seem to be something … Read More
Reader @mpietruczak told me about this newsletter by Duane Morris. It’s about the decision of the U.S. District Court for the Northern District of California in Powertech Tech. v. Tessera, Inc. (PDF copy here). The court interpreted the phrase “non-breaching party” in a way that’s inconsistent with how I’ve used it. The issue was whether under the contract at issue one party could … Read More
Updated 5 July 2022: By all that is holy, ignore this post and instead consult this 2022 post! Today I encountered in a contract the following use of offset: Unless it has notified Company otherwise, the Vendor shall offset the Search Fees payable by the Company under this Agreement against the Vendor’s payment obligations to Company under this agreement. To asses the … Read More
Today I encountered in a contract the following use of revoke: The Vendor may revoke this license at any time upon notice to the Company. For purposes of a license granted by contract, I recommend using instead terminate. Here’s the relevant part of the Black’s Law Dictionary definition of revocation: 1. An annulment, cancellation, or reversal, usu. of an act … Read More
It’s routine for one post to beget another. My post on shall not negligently (here) was prompted by the following contract language: Company will not, and will not knowingly or negligently allow any third party to [do various things]. In a comment, David Ziff considered the implications of using just shall not allow, with negligently omitted. I agree with David. On … Read More
While analyzing the usages in a contract I pulled from EDGAR (more about that in due course), I spotted the following: Company will not, and will not knowingly or negligently allow any third party to [do various things]. But does it make sense to impose an obligation on someone not to act negligently? Is that equivalent to imposing an obligation … Read More
The word actively can join the long list of useless—or at least mostly useless—words used on contracts. In particular, it often seems that actively is in effect used just to mean the opposite of passively. That’s redundant, given that actively is always used with a verb that connotes action. Consider the following examples from EDGAR: Liens for taxes not yet delinquent … Read More
Earlier this month I unleashed the following tweet: Love it when contracts exclude both "direct" and "indirect" damages (usually with a bunch of other stuff). That excludes ALL damages! — Ken Adams (@AdamsDrafting) January 10, 2014 So I noted with interest the opinion of the Texas Court of Appeals in Innovate Technology Solutions, L.P. v. Youngsoft, Inc., 05-12-00658-CV, 2013 WL 6074126 … Read More
Sometimes it’s left to me to address the big questions. Consider the defined terms SoW (used to meaning a statement of work issued under a particular contract) and MAC (used to mean a material adverse change in something or other). (MSCD 9.73 recommends that you use Material Adverse Change as the defined term, not MAC, but MAC provides a convenient … Read More
