Miscellaneous

Miscellaneous

Depending on the type of transaction at issue, the parties may find it useful and appropriate to use “bare bones” versions of standard terms (e.g., integration, amendments and waivers, validity, assignment, independent relationship, jurisdiction and governing law, and counterparts) and clump them together into one “miscellaneous” (aka “kitchen sink”) clause.  

The following exemplars are demonstrative of this approach and can be used as a checklist to ensure that all applicable terms are properly included, which may be particularly useful if a contract lacks these basic terms, including:

• final agreement/entire agreement/integration clause

• amendment clause

• assignment clause

• severability or blue pencil clause

• independent contractor clause

• governing law clause

• venue/jurisdiction clause

• counterparts clause

• enurement/inurement clause

• no waiver clause

• trade secrets clause

Exemplar C49-1

This Agreement supersedes all prior agreements and understandings between the Parties concerning the subject matter hereof and shall constitute the complete and exclusive agreement between the Parties with respect to the subject matter. No amendment or waiver of any provision of this Agreement shall be effective unless set forth in writing and executed by authorized representatives of both Parties. In the event one or more provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, then the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible. This Agreement may not be assigned in whole or in part by either Party without the prior written consent of the other Party. The relationship of the Parties established by this Agreement is that of independent contractors and nothing contained herein shall be construed to create a partnership, joint venture, or other agency relationship between the Parties. All disputes arising out of or in connection with this Agreement are subject exclusively to the laws of the State of California without regard to the provisions governing conflict of laws. This Agreement may be executed in one or more counterparts exchanged by facsimile or imaged copy, each of which shall be deemed an original and all of which, when taken together, shall constitute the original instrument.

Exemplar C49-2

This Agreement will bind and inure to the benefit of the parties and their successors and permitted assigns. Neither party may assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party, and any such attempt assignment shall be null and void. If any clause or provision of this Agreement is illegal, or unenforceable, then it is the intention of the Parties hereto that the remainder of this Agreement shall not be affected thereby, and it is also the intention of the Parties that in lieu of each clause or provision that is illegal, invalid or unenforceable, there be added as part of this Agreement a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable.  This Agreement will be governed by the laws of the State of Texas, without reference to conflict of laws principles.  Any dispute relating to, arising out of, or connected with this Agreement shall be exclusively filed and maintained in a State or Federal court located in Houston, Harris County, Texas.  This document contains the entire agreement between the parties with respect to the subject matter of this Agreement. Neither party will have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth in this Agreement. Any failure to enforce any provision of this Agreement will not constitute a waiver of that provision or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties. This Agreement may be executed in two or more counterparts, each of which is deemed to be an original, but all of which constitute the same agreement. Facsimile and email pdf copies of signatures to this Agreement shall be binding originals.