Common Clauses
What do those Miscellaneous Clauses mean?
Jul 18, 2023
Our goal in contract reviews is to present the most critical information you need for negotiations as succinctly as possible. As a result, common ‘miscellaneous’ clauses are sometimes left out and leave some users asking what those clauses mean. Let’s tackle those questions today in the context of employment agreements!
What are Miscellaneous Clauses?
As one law firm, PSED Law, puts it, miscellaneous clauses are “portions of the contract where all of the random, seemingly uninteresting provisions are found.” These clauses tend to be at the end of the contract, containing mostly boilerplate contract-agnostic language to cover clauses like Severability, Entire Agreement, Assignment, and more. While it’s true that some of these clauses are fairly non-negotiable and truly ‘standard’, other clauses can have profound impacts around contract liabilities.
What do the Miscellaneous Clauses mean?
In true Ask Ginkgo fashion, let’s explain each common clause using as little legal jargon as possible:
Severability: If any clause in the contract is found to be unenforceable, that clause is ‘severed’ and the rest of the contract is still in effect.
No Waiver: If any part of the contract isn’t enforced at any point, it doesn’t mean that party is ‘waiving’ their right to do so.
Entire Agreement (AKA Merger Clause): This contract and only this contract governs the entire contractual relationship, not any previous documents or conversations.
Survival: Clauses that will ‘survive’ and remain in effect even after the contract expires or terminates. For example, confidentiality, non-solicit, and non-compete clauses often ‘survive’ after an employee leaves their employer.
Assignment: Allows or prevents a party from assigning their part of the contract to someone else, often in the case of a subcontractor.
Counterparts: As contracts may be signed sequentially, there may be multiple copies (AKA ‘Counterparts’), but all copies will be treated as an original.
Governing Law: The law that will be used to interpret the contract, often a specific state’s law for US contracts.
Forum Selection: The location of the courts where disputes for a contract must first be filed.
Arbitration: Instead of taking disputes to court, you waive your rights to a trial by jury and use private arbitration instead.
Attorney’s Fees: In the case of a dispute, how the attorney fees for both sides are divided.
Notices: The method and time frame communications regarding the contract must be given.
Force Majeure: Rare but catastrophic events such as war and extreme weather that allow the impacted party to not fulfill their contractual obligations.
Our customers will recognize that some clauses are always included in our reports given their implications in the case of a dispute (e.g. Arbitration, Governing Law, Forum Selection). Specific clauses have also been changing, as we wrote in our Contractor Agreement blog post about the importance of negotiating for pandemics to be included in Force Majeure clauses in light of Covid-19. On the other hand, standard clauses with limited negotiability like Severability, No Waiver, and Entire Agreement are left out. We hope this post clarifies why some clauses are left out, and explains what they mean to those who are after total understanding of their contract!
For advocacy and beyond,
The Ask Ginkgo Team
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