Assignment, novation and other dealings
Option 1 – Assignment, novation and other dealings – consent required
A party must not assign or novate this [deed/agreement] or otherwise deal with the benefit of it or a right under it, or purport to do so, without the prior written consent of each other party [which consent is not to be unreasonably withheld/which consent may be withheld at the absolute discretion of the party from whom consent is sought].
Option 2 – Assignment, novation and other dealings – specifies circumstances in which consent can reasonably be withheld
(a) [Insert name of Party A] may not assign or novate this [deed/agreement] or otherwise deal with the benefit of it or a right under it, or purport to do so, without the prior written consent of [insert name of Party B], which consent is not to be unreasonably withheld.
(b) [Insert name of Party A] acknowledges that it will be reasonable for [insert name of Party B] to withhold its consent under this clause if:
(I) [Insert name of Party B] is not satisfied with the ability of the proposed assignee to perform [insert name of Party A]’s obligations under this [deed/agreement];
(ii) [Insert name of Party B] is not satisfied with the proposed assignee’s financial standing or reputation;
(iii) the proposed assignee is a competitor of [insert name of Party B]; or
(iv) [Insert name of Party B] is in dispute with the proposed assignee.
Commentary
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Choice of jurisdiction
Sample clause
Each party irrevocably and unconditionally submits to the [exclusive/non-exclusive] jurisdiction of the courts of [insert relevant jurisdiction] including, for the avoidance of doubt, the Federal Court of Australia sitting in [insert relevant jurisdiction].
Commentary
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Choice of law / Governing law
Sample clause
This [deed/agreement] is governed by the laws of [New South Wales/[insert relevant jurisdiction]].
Commentary
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Consents and approvals
Sample clauses
Option 1 – Consents and approvals – absolute discretion – neutral drafting
Except as expressly provided in this [deed/agreement], a party may conditionally or unconditionally in its absolute discretion give or withhold any consent or approval under this [deed/agreement].
Option 2 – Consents and approvals – not unreasonably withheld – drafting in favour of party seeking consent
Except as expressly provided in this [deed/agreement], a party may conditionally or unconditionally give or withhold any consent or approval under this [deed/agreement], but that consent is not to be unreasonably delayed or withheld.
Commentary
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Counterparts
Sample clause
This [agreement/deed] may be executed in any number of counterparts, each of which:
may be executed electronically or in handwriting; and
will be deemed an original whether kept in electronic or paper form, and all of which taken together will constitute one and the same document.
Without limiting the foregoing, if the signatures on behalf of one party are on more than one copy of this [agreement/deed], this shall be taken to be the same as, and have the same effect as, if all of those signatures were on the same counterpart of this [agreement/deed].
Commentary
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Cumulative rights
Sample clause
Except as expressly provided in this [deed/agreement], the rights of a party under this [deed/agreement] are in addition to and do not exclude or limit any other rights or remedies provided by law.
Commentary
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Entire agreement
Sample clause
(a) [Other than the Confidentiality Agreement, t/T]his [deed/agreement] [together with all Transaction Documents/[specify documents]] supersede[s] all previous agreements, understandings[, /and] negotiations[, representations and warranties] about its subject matter and embodies the entire agreement between the parties about its subject matter.
Option – termination of previous deed or agreement
(b) [specify previous deed or agreement] is terminated from the date of this [deed/agreement].
Option – non-reliance clause
(c) [Each party/[insert party]] acknowledges that no representations and warranties about the subject matter of this [deed/agreement] have been made by or on behalf of [the other party/[insert party]] except as expressly set out in this [deed/agreement] and [the Transaction Documents/[specify documents]] and that it has not relied on any representations or warranties about the subject matter of this [deed/agreement] and [the Transaction Documents/[specify documents]] given by or on behalf of [the other party/[insert party]] except as expressly provided in this [deed/agreement] and [the Transaction Documents/[specify documents]].
Commentary
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Force Majeure
Sample Clause
(a) If a party is unable to perform an obligation under this [deed/agreement] because of a Force Majeure Event, then:
(i) as soon as reasonably practicable (and in any event no later than [10/[insert number]] Business Days) after the Force Majeure Event arises, that party must notify the other party of the extent to which the notifying party is unable to perform its obligation;
(ii) where a party complies with clause (a)(i), that party’s obligation to perform those obligations will be suspended for the duration of the delay arising directly out of the Force Majeure Event; and
(iii) in all cases, the parties must use their best endeavours to minimise the impact of any Force Majeure Event.
(b) Neither party is excused from any obligation to pay money because of a Force Majeure Event, despite any other provision of this [deed/agreement].
(c) If a delay by either party arising directly out of a Force Majeure Event continues for more than [30/[insert number]] Business Days, the other party may, at its discretion:
(i) reject [describe what is to be affected, e.g. “the Products”] affected by that Force Majeure Event by giving [10/[insert number]] Business Days notice to the delaying party; or
(ii) terminate the [deed/agreement] by giving [10/[insert number]] Business Days notice to the delaying party.
Commentary
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Further assurances
Sample clause
Option 1 – general
Except as expressly provided in this [deed/agreement], each party must, at its own expense, do all things reasonably necessary to give full effect to this [deed/agreement] and the matters contemplated by it.
Option 2 – execute specific agreements/procurement etc
Except as expressly provided in this [deed/agreement], each party must, at its own expense, do all things reasonably necessary to give full effect to this [deed/agreement] and the matters contemplated by it, including:
(a) executing or ensuring the execution of documents;
(b) ensuring that relevant third parties do all things reasonably necessary to give full effect to this [deed/agreement] and the matters contemplated by it; [and]
(c) [insert any other relevant class of action appropriate for the transaction].
Commentary
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Interpretation
Sample clause
1.1 Interpretation
In this [deed/agreement] the following rules of interpretation apply unless the contrary intention appears:
(a) headings are for convenience only and do not affect the interpretation of this [deed/agreement];
(b) the singular includes the plural and vice versa;
(c) words that are gender neutral or gender specific include each gender;
(d) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(e) the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not words of limitation;
(f) a reference to:
(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation, trust or other body corporate;
(ii) a thing (including but not limited to a chose in action or other right) includes a part of that thing;
(iii) a party includes its agents, successors and permitted assigns;
(iv) a document includes all amendments or supplements to that document;
(v) a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this [deed/agreement];
(vi) this [deed/agreement] includes all schedules and attachments to it;
(vii) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity [or a rule of an applicable Financial Market] and is a reference to that law as amended, consolidated or replaced;
(viii) a statute includes any regulation, ordinance, by-law or other subordinate legislation made under it;
(ix) an agreement other than this [deed/agreement] includes an undertaking, or legally enforceable arrangement or understanding whether or not in writing; and
(x) a monetary amount is in Australian dollars and all amounts payable under or in connection with this [deed/agreement] are payable in Australian dollars;
(g) an agreement on the part of two or more persons binds them [jointly and not severally / severally and not jointly / jointly and each of them severally];
(h) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this [deed/agreement] or any part of it;
(i) when the day on which something must be done is not a Business Day, that thing must be done on the [following/preceding] Business Day;
(j) in determining the time of day where relevant to this [deed/agreement], the relevant time of day is:
(i) for the purposes of giving or receiving notices, the time of day where a party receiving a notice is located; or
(ii) for any other purpose under this [deed/agreement], the time of day in the place where the party required to perform an obligation is located;
(k) a day is the period of time commencing at midnight and ending immediately before the next midnight is to occur; [and]
(l) if a period of time is calculated from a particular day, act or event (such as the giving of a notice), unless otherwise stated in this [agreement/deed], it is to be calculated exclusive of that day, or the day of that act or event [; and/.
[Option]
(m) To the extent there is any conflict between the provisions of this [deed/agreement] [and] [specify any related documents e.g. Statement of Work, special conditions, specifications etc], [the terms of the main body of this [deed/agreement] will prevail / the following will prevail in the following order: [specify order]].
[End option].
Commentary
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Notices
Long form sample clause
1. Notices
[Caution – Notices by email:
NB: The Electronic Transactions Act will apply if provisions relating to electronic notices / communications are deleted from this clause. In addition to this, clients should be warned, from an evidentiary perspective, about the risks associated with email delivery of notices generally and whether they wish to expressly prohibit this form of notice delivery under the contract.
NB: If you do decide to include email as an option in clause 1.1(a) below, please ensure that you also include clauses 1.1(b)(iii), 1.1(c)(iv), 1.2 (Notices sent by email) and consider whether any important notices should be expressly specified and excluded from this mode of delivery under clause 1.3 (Certain Notices not to be sent by email).]
1.1 General
(a) Unless expressly stated otherwise in this [deed/agreement] [and subject to clause 1.2 (Notices sent by email)], a notice, consent or other communication given under this [deed/agreement] including, but not limited to, a request, certificate, demand, consent, waiver or approval, to or by a party to this [deed/agreement] (Notice):
(i) must be in legible writing and in English [(or accompanied by a certified translation into English)];
(ii) must be addressed to the party to whom it is to be given (Addressee) at the address [[,/or] facsimile number] [or email address] set out below or to any other address [[,/or] facsimile number] [or email address] as notified by the Addressee for the purposes of this clause:
(A) If to [Party A]:
Address:
Attention:
Position:
[Facsimile:]
[Email:]
(B) If to [Party B]:
Address:
Attention:
Position:
[Facsimile:]
[Email:]
(iii) must be signed by or on behalf of the sender (if an individual) or an Officer of the sender;
(iv) must be either:
(A) delivered by hand or sent by pre-paid mail (by airmail if sent to or from a place outside of Australia) to the Addressee; [and/or]
(B) [sent by facsimile, to the Addressee’s facsimile number]; [and/or]];
(C) [sent by email to the Addressee’s email address; and]
(v) is deemed to be received by the Addressee in accordance with clause 1.1(c).
(b) If:
(i) a party changes its address and fails to notify the other part[y/ies] of this change and the new address, delivery of Notices marked to the attention of the Addressee at that new address is deemed compliant with the notice obligations under this clause; [and/or]
(ii) an individual named in clause 1.1(a)(ii) ceases to work in the role specified or ceases to work for the Addressee and the Addressee fails to notify the other part[y/ies] of an alternative individual, delivery of Notices marked to the attention of an individual in the same or equivalent role at the Addressee is deemed compliant with the notice obligations under this clause[./; and/or
(iii) an individual associated with an email address listed in clause 1.1(a)(ii) ceases to work in the role specified or ceases to work for the Addressee and the Addressee fails to notify the other part[y/ies] of an alternative email address, Notices sent by email to a manager or equivalent level personnel at the Addressee are deemed compliant with the notice obligations under this clause.]
(c) Without limiting any other means by which the sender may be able to prove that a Notice has been received by the Addressee, a Notice is deemed to be received:
(i) if delivered by hand, when delivered to the Addressee;
(ii) if sent by post, on the [6th/[insert]] Business Day after the date of posting, or if to or from a place outside Australia, on the [10th/[insert]] Business Day after the date of posting; [or]
[if sent by facsimile transmission, on receipt by the sender of an acknowledgement or transmission report generated by the machine from which the facsimile was sent; [or]
[Option 1 – email delivery
NB: Generally under the Electronic Transactions Act:
if an email address (or facsimile number) is specified in a contract (but unaccompanied by delivery / receipt parameters), communications sent using those methods will be deemed received when the message enters the recipient’s mail server; or
if no email address (or facsimile number) is specified in the contract, communications sent using those methods will be deemed received at the time when the recipient becomes aware of the message.
For evidentiary purposes, this clause establishes a clearer mechanism for determining deemed receipt of electronic notices. Clients who wish to rely on email delivery of notices must have an awareness of their server capabilities and decide on the appropriate deemed timing for their receipt or whether automated messages confirming email delivery / read receipts are enabled and agreed to be relied upon. Please discuss this clause with your client, particularly if email delivery of important notices has not been expressly prohibited under clause 1.3 (Certain Notices not to be sent by email).
(iii) [if sent by email:
(A) when the sender receives an automated message confirming delivery; or
(B) [30 minutes/[insert time period]] after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first.]
End of option – email delivery]
but if the delivery or receipt is on a day which is not a Business Day or is after 5.00 pm (Addressee’s time) it is deemed to be received at 9.00 am on the following Business Day.
(d) [A facsimile transmission is deemed to be legible unless the Addressee telephones the sender within 2 hours after the transmission is received or regarded as received under clause 1.1(c) and informs the sender that it is not legible.]
[Option – Notices sent by email
1.2 Notices sent by email
Notices sent by email need not be marked for attention in the way stated in clause 1.1 (General). However, the email:
(a) must state the first and last name of the sender; and
(b) must be [insert any other form requirements].
Notices sent by email are taken to be signed by the named sender.
End of Option – Notices sent by email]
[Option – certain Notices not to be sent by email
NB: For evidentiary reasons, you may wish to expressly prohibit the delivery of all Notices (or all important Notices) by email. For example, a notice terminating this agreement by email. Please seek specific instructions from your client.
1.3 Certain Notices not to be sent by email
Despite clauses 1.1 (General) and 1.2 (Notices sent by email), the following Notices must not be sent by email:
(a) [insert any Notice to be excluded].
[End option – Certain Notices not to be sent by email.]
Short form sample clause
Information / alert – Notices by email
For evidentiary reasons, please use the long form Notices clause if your client seeks to rely on email delivery of notices under the contract.
1.1 Notices
(a) A notice, consent or other communication under this [deed/agreement] is only effective if it is in writing, signed by or on behalf of the party giving it and it is received in full and legible form at the addressee’s address [or facsimile number]. It is regarded as received [at the time and] on the day it is actually received, but if it is received on a day that is not a Business Day or after 5.00 pm on a Business Day it is regarded as received [at 9.00 am] on the following Business Day.
(b) For the purposes of this clause, a party’s address [and facsimile number are those/is] set out below, unless the party has notified a changed address [or facsimile number] in which case the notice, consent, approval or other communication must be to that address [or number]:
insert party’s name]
Address:
[Facsimile:]
Attention:
Position:
insert party’s name]
Address:
[Facsimile:]
Attention:
Position:
(c) If a party changes address and fails to notify the other part[y/ies] of this change and the new address, delivery of notices to that party at that new address is deemed compliant with the notice obligations under this clause.
(d) If an individual named in clause 1.1(b) ceases to work in the role specified or ceases to work for a party and that party fails to notify the other part[y/ies] of an alternative individual, delivery of notices marked to the attention of an individual in the same or equivalent role at that party is deemed compliant with the notice obligations under this clause.
Commentary
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Relationship of parties
Sample clause
Except as expressly provided in this [deed/agreement]:
(a) nothing in this [deed/agreement] is intended to constitute a fiduciary relationship, employment relationship or an agency, partnership or trust; and
(b) no party has authority to bind any other party.
Commentary
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Severability
Sample clause
Any term of this [deed/agreement] which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this [deed/agreement] is not affected.
Commentary
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Survival and merger
Sample clause
(a) No term of this [deed/agreement] merges on completion of any transaction contemplated by this [deed/agreement].
(b) Clauses [insert clause number and heading] survive termination or expiry of this [deed/agreement] together with any other term which by its nature is intended to do so.
Commentary
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Variation
Sample clause
Option 1 – no variation
No variation of this [deed/agreement] is effective unless made [in writing/by deed] and signed by each party.
Option 2 – no variation unless particular procedure followed
No variation of this [deed/agreement] is effective unless made in accordance with the following procedures: [insert procedures].
Option 3 – variation by a specified person
No variation of this [deed/agreement] is effective unless made [in writing/by deed] and signed by [an Authorised Officer of] each party.
Commentary
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Waiver
Sample clause
(a) No waiver of a right or remedy under this [deed/agreement] is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted.
(b) A single or partial exercise of a right or remedy under this [deed/agreement] does not prevent a further exercise of that or of any other right or remedy.
(c) Failure to exercise or delay in exercising a right or remedy under this [deed/agreement] does not operate as a waiver or prevent further exercise of that or of any other right or remedy.
Commentary
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