Miscellaneous Provisions Oregon State Bar Sample Form
Miscellaneous Provisionsoregon State Bar Sample Form Introductory C
The miscellaneous provisions of an agreement should be tailored to the nature and subject matter of the agreement.
1. Binding Effect. This Agreement is binding on and inures to the benefit of the parties and their respective heirs, personal representatives, successors, and [permitted] assigns.
2. Assignment. Neither this Agreement nor any rights, interests, or obligations under it may be assigned without prior written consent of the other parties, which consent will not be unreasonably withheld.
3. No Third-Party Beneficiaries. Nothing in this Agreement confers rights, remedies, or claims to any person other than the parties.
4. Notices. All notices must be in writing and deemed given if delivered personally, sent via facsimile (with confirmation), mailed by certified mail, or delivered by overnight service (with confirmation) to specified addresses or facsimile numbers. Notices are deemed given on delivery, after the specified days post-mailing, or upon confirmed delivery.
5. Amendments. This Agreement may only be amended in writing signed by all parties, referencing the original agreement.
6. Construction. Titles are for convenience only; references to “Section” refer to this Agreement's sections; words are gender- or number-appropriate; “include” or “including” follow with “without limitation.”
7. Counterparts. The Agreement may be signed in counterparts, each considered an original, together constituting one agreement.
8. Facsimile Signatures. Signatures via facsimile are equivalent to original signatures; parties may confirm facsimile signatures by signing original documents.
9. Further Assurances. Each party agrees to execute additional documents and perform acts reasonably necessary to carry out the Agreement’s intent.
10. Time of Essence. Time is of the essence for all dates and time periods in this Agreement.
11. Expenses. Each party bears its own expenses related to the Agreement unless otherwise specified.
12. Waiver. Any provision waived must be in writing; failure to enforce a provision does not constitute waiver of subsequent breaches.
13. Governing Law. This Agreement is governed by Oregon law without regard to conflict principles.
14. Attorney Fees. The prevailing party in disputes under this Agreement is entitled to recover reasonable attorney fees and costs. An alternative provision covers disputes involving federal bankruptcy law, allowing recovery of all attorney, paralegal, expert fees, and costs.
15. Arbitration. Disputes will be settled by arbitration administered by a specified arbitration association, with details on arbitration procedures, the arbitrator’s qualifications, confidentiality, remedies, and possible consolidation of proceedings.
16. Injunctive and Other Equitable Relief. Breaches may entitle parties to injunctive relief or specific performance as damages may be inadequate.
17. Venue. Enforcement actions must be brought in specified Oregon courts, with parties consenting to jurisdiction and waiving objections.
18. Exhibits. Referenced exhibits are incorporated as if fully set forth.
19. Severability. Invalid or unenforceable provisions do not affect remaining provisions.
20. Entire Agreement. This document and referenced instruments constitute the entire agreement, superseding prior agreements.
Paper For Above instruction
The miscellaneous provisions of any contractual agreement are crucial for establishing clear, enforceable, and adaptable terms that address the practicalities and potential legal issues that may arise during the performance or interpretation of the contract. Tailoring these provisions to the particular subject matter ensures that the agreement functions effectively and protects the interests of all parties involved.
One fundamental aspect of such provisions is their binding effect. An effective contract must clearly state that it is binding on and benefits successors, heirs, and permissible assigns. This ensures continuity and enforceability beyond the immediate parties, facilitating business or personal transitions. Additionally, restrictions on assignment are common to prevent unapproved third parties from gaining rights or obligations, thus maintaining control over who is bound by the contract. Typically, consent for assignment is required, though it can be unreasonable to withhold such consent without just cause.
Moreover, contracts should specify that no third-party beneficiaries are intended unless explicitly stated. This prevents unintended claims against the parties. Notices clauses, which specify how communications should be delivered—whether personally, by mail, via facsimile, or overnight services—are vital for clarity. Clear timing rules for deemed delivery provide certainty in dispute resolution or contractual obligations.
Amendment clauses safeguard against unilateral modifications, requiring all changes to be in writing and signed by all parties. This preserves the integrity of the contractual terms and prevents informal or accidental modifications. Construction clauses, including the interpretation of headings, gender, or inclusion language such as “including,” assist courts and interpretive bodies in understanding the contract’s language.
The ability to execute the agreement in counterparts allows parties to sign separate copies, which collectively form one binding document. Facsimile signatures are recognized as original, provided proper confirmation procedures are followed, ensuring flexibility in signing processes. Further assurances require parties to execute additional documents or perform acts necessary to implement the agreement, reflecting good faith and cooperation.
Time is often declared of the essence, emphasizing the importance of punctual performance. Expense clauses allocate costs fairly, and waivers specify that any waived rights or provisions must be in writing and do not invalidate subsequent breaches or rights. Governing law clauses determine the applicable legal jurisdiction, critical for resolving disputes consistently.
Attorney fee provisions are essential, especially when disputes involve significant legal costs. They specify that the prevailing party can recover reasonable attorney fees, which discourages frivolous claims and ensures parties are financially protected.
Dispute resolution clauses such as arbitration have gained popularity as efficient alternatives to litigation. Arbitration clauses specify the administering body, procedures, arbitration location, arbitrator qualifications, and scope of authority, including interim relief, discovery, remedies, confidentiality, and awards. These provisions streamline dispute resolution and provide flexibility while maintaining legal enforceability.
In addition, injunctive relief provisions recognize that monetary damages may be inadequate for breaches involving confidentiality, intellectual property, or other sensitive issues. Venue provisions designate courts where disputes can be litigated, which can reduce jurisdictional ambiguities.
Incorporating references to exhibits and severability clauses ensures that the entire agreement remains enforceable even if some provisions are invalid or unenforceable. The entire agreement clause confirms that the document supercedes prior discussions, offering certainty.
Effective miscellaneous provisions, properly tailored and drafted, serve to minimize ambiguity, allocate risks, and facilitate smooth contractual operation in diverse legal and practical contexts.
References
- Beale, H. G., Bishop, W. W., & Furmston, M. P. (2019). Contract law: cases, materials, and text. Oxford University Press.
- Corbin, A. (2017). Corbin on contracts. West Publishing.
- Eisenberg, M. (2018). The law of contracts in a nutshell. West Academic Publishing.
- Farnsworth, E. A. (2015). Contracts. Aspen Publishers.
- Oregon Revised Statutes—ORS Chapter 36 (Uniform Arbitration Act). (2023). Oregon State Legislature.
- Oregon Revised Statutes—ORS Chapter 653.295 (non-competes). (2023). Oregon State Legislature.
- Scott, R. E., & Trubek, L. G. (2020). Lawyers' ethics in transactional practice. Oxford University Press.
- Simkin, J. D. (2018). Drafting contracts: how and why lawyers do what they do. Wolters Kluwer.
- Twaddle, M. (2017). Negotiating and drafting contract provisions in Oregon. Oregon Law Review.
- U.S. Arbitration Rules. (2022). American Arbitration Association.