Amendment Form and Effect

Table of Contents:

• Recitals

• Emphasis

• Retroactive Effect

• No-Change Warranty

Amendment Form and Effect

When parties agree to make changes to a contract, such changes need to be made clearly, transparently, and with an understanding of its effect (e.g., how and when such changes take effect). The exemplars below illustrate various ways in which parties who desire to make changes to a contract can do so with clarity and precision (please also refer to the section entitled “Automatic/Unilateral Changes” for a discussion on amendments made automatically or as of unilateral right).

Recitals

Drafting informative recitals in the preamble of an amendment form is convenient way to memorialize the purpose of an amendment to avoid confusion and disagreement later.

The following exemplar prescribes a general description of the amendment’s purpose:

Exemplar C6-1

WHEREAS Contractor and Customer entered into a Hardware Evaluation Agreement, dated as of September 1, 2024 (the "Agreement”);

WHEREAS Contractor and Customer wish to amend the Agreement to, among other things, extend the term of the Agreement and to add and/or amend certain other Sections and Schedules of the Agreement; and

WHEREAS it is the parties’ intention that except as expressly set forth below, the terms and conditions of the Agreement shall remain unmodified and shall continue in full force and effect.

In the following exemplar, the parties clarify that despite the technical expiration of an underlying contract, the parties have operated as if the contract did not expire with the intent to extend the expiration term formally:

Exemplar C6-2

WHEREAS, Contractor and Client have entered into that certain Master Services Agreement dated January 25, 2024 (the "Agreement''), pursuant to which the parties agreed to certain services;

WHEREAS, although it may appear on its face that the Agreement expired on July 25, 2021, the parties have continued to operate under their terms in good faith and now intend to formalize their agreement to extend the Term of the Agreement; and

WHEREAS, it is the intent of the parties to add and/or change specific terms set forth in the Agreement, and the parties desire to modify and amend the terms and conditions of the Agreement as expressly stated in this Amendment.

Emphasis

As demonstrated in the following examples, where the parties are only changing a specific key word or two in a long sentence, it may be useful and convenient to highlight the change to set it apart from the other words that are not being changed:

Exemplar C6-3

The first sentence of Section 3.1 of the Agreement is hereby amended and restated in its entirety to read as follows (for purposes of convenience only, the amended language is emphasized): “The Agreement will become effective as of the Effective Date and will continue in effect for a period of ten (10) years thereafter.”

Exemplar C6-4

The Parties have agreed to modify the Agreement as follows:

Section 3 (Term; Termination) is hereby amended and restated in its entirety to read as follows (for purposes of convenience only, the amended language is underlined and emphasized):

“3. Term; Termination. This Agreement will become effective as of the Effective Date and will continue in effect for a period of six (6) years thereafter; provided that provided that (i) either party may terminate this Agreement if the other party has committed a material breach of this Agreement and has not cured such breach within thirty (30) days after written notice of the breach is provided.”

Retroactive Effect

It is important for parties to clarify whether a change to a contract applies retroactively to the original date of contract execution or only prospectively from the effective date of amendment. In the following exemplar, the parties make clear that once the contract is amended, all references to such contract shall mean the contract as amended, and not to the contract in its original form. This effectively makes the amendment apply nunc pro tunc and effective ab initio:

Exemplar C6-5

On and after the date hereof, each reference in the Agreement to “this Agreement” and each reference to the “Agreement” in any and all other agreements, documents and instruments delivered by Client or Contractor in accordance with the Agreement shall mean and be a reference to the Agreement as amended by this Amendment. Except as specifically amended by this Amendment, the Agreement shall remain in full force and effect and is hereby ratified and confirmed. In the event of any inconsistency or conflict between the Agreement and this Amendment, the terms and conditions and provisions of this Amendment shall govern and control.

No-Change Warranty

The following exemplars may be useful in ensuring that during the process of finalization and execution, no sub rosa or other surreptitious changes have been made to the contract prior to execution:

Exemplar C6-6

By signing and delivering this Agreement and/or any schedule, exhibit, amendment, or addendum thereto, the delivering Party represents to the other Party that the delivering Party has not made any changes to such document from the draft most-recently provided to the delivering Party by the other Party unless the delivering Party has expressly called such changes to the other Party’s attention in writing (e.g. by “redlining” the document or by a comment memo or email).

Exemplar C6-7

If this Agreement was transmitted to Lessee for signature in electronic format, Lessee represents and warrants to Lessor and any Lessor under the Schedule that the text originally transmitted has not been altered in any way. Lessor’s acceptance of this Agreement and any Lessor acceptance of any Schedule to which this Agreement applies are based on their reliance on, and specifically conditioned by, the truth of this representation and warranty. Any Lessee under a Schedule to which this Agreement applies acknowledges receipt of a true copy of this Agreement.