Lieber nahdran, als zu weit weg.

Agreement Effectuated

As explained above, the transfer provision can be drafted into a contract so that a party can transfer the contract to a deviant of all the assets of that party. However, in the context of such an assignment, a confidentiality provision as described above could be interpreted so that the implied party is required to obtain the agreement/waiver of the other party with respect to this duty of confidentiality. If these formulations of the transfer and confidentiality provisions were added by reflex to several other agreements of the acquired party, the requirement to obtain parties from such consents/renouncements could significantly delay or even prevent the impending acquisition. In this scenario, including a provision with the following effect, the problem should be resolved: „A party that receives confidential information from the other party may disclose such confidential information to an authorized assignee of that receiving party in accordance with the section [assignment provision] provided that the authorized assignee is first informed by that recipient of the confidentiality of such confidential information and has agreed in writing to respect its confidentiality in accordance with the confidentiality of this section.“ One way or another, we`ve probably heard all the words in this sense: „Don`t worry about this provision, it`s just the boiler platform – standard things.“ It is also likely that many of us were tempted, as part of the revision of an infinitely long agreement, to skip the „different“ sections at the end of the document or to take less into account (with subtitles such as „Notices,“ „Counterparts,“ „Severability,“ Further Insurance, etc.) assuming they are quite standard and harmless. And have we not all, especially as young jurists, felt the impetus of the drafting of a contract (but I hope he refused) to enshrine the default language in a treaty without fully examining whether these imported words are proportionate to the intentions of the parties and to the nature and circumstances of their agreement? One might think, for example, of contracts under which a company implements a compensation plan for its employees. In addition to the provision of certain bonuses and subsidies to the stock option subject to certain labour performance criteria, each contract assumes that its terms „constitute the full agreement of the parties and remove all previous agreements“. Let us also assume that employees have entered into existing agreements with the company regarding limited stock grants or other incentive compensation issues. In these circumstances, these existing agreements are likely to be considered replaced and unenforceable by a court under the above-mentioned integration clause. In order to reduce this risk, the integration clause could appropriately refer to these existing agreements roughly as follows: „This agreement replaces all previous agreements between the parties with respect to their purpose and constitutes a complete and exclusive statement of the terms of the agreement between the parties with respect to their purpose (as well as the documents [in this agreement and] [listed in Appendix A].“ Boilerplate1 provisions are often considered an ancient (and therefore impeccable), immutable (and therefore non-negotiable) and prefabricated (and therefore fungible) language, which can be transplanted commonly between and between a multitude of different agreements. As explained below, this view is false and can give dark and undesirable results. The purpose of this article is to remind us that these provisions are not unit rates that must be carefully considered and adapted to each contract.