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Options to Choose in Agreement Composition

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Taras BerezaWhereas it is not always a piece of cake to choose the right option for the interpretation or/and translation of terms, clauses and definitions in legal practice, it is my firm belief that the below analysis of model agreement composition will be of great use and importance in terms of reference and advice. In the day-to-day practice legal practitioners are normally mixed with the dilemma of the variety of options, at first sight, suitable for translation. Therefore the question of “Which is the standard and who actually sets it?” is more than justified.

In my humble translator’s opinion, no matter which kind of English we use in translation (i.e. B.E., A.E., or other Englishes etc), there is a standard you bear overall responsibility for, i.e. the one specifically defined by the client, or professional environment you are involved in. For instance, it is curious to know that the translation of legal document may satisfy one particular client; although, the same text might not be positively assessed, or worse than that, even rejected by the proficient person/company that has spent decades in legal counseling. Such inconsistency usually provokes much debate among translators/interpreters, editors, legal secretaries, lawyers, and eventually clients.

Below is the attempt to opt for an appropriate layout, required in that or another section of legal document. However, this is not a set of practical rules of “How to make your agreement perfect?” Neither is it any ambition of mine to pretend for the introduction of fit-for-all reference. Instead the article focuses on 10 model sections, including clauses with the variety of appropriately selected options [italics], which may be widely used in agreement composition. At that, your final choice of the alternatives given hereinafter shall, of course, depend on each particular case.

1. Parties, Titles and Requisites

a) This Agreement is executed this e.g. 12 day of January 2005 (or, alternatively, the twelfth day of January, two thousand and five, if the context may require so) by and between Party 1 and Party 2; or

b) This Agreement is made on e.g. January 12, 2005 by and between Party 1 and Party 2; or

c) This Agreement is entered into on e.g. January 12, 2005 by and between Party 1 and Party 2;

Obviously irreplaceable in translation practice Oxford Collocations Dictionary for Students of English provides us with the following extension in due respect: to conclude/enter into/execute/sign/reach/ arrive at/come to/negotiate/work towards agreement) (p.17 “Agreement”).

Right afterwards usually follow legal requisites of the Parties specified, for example, as: Party 1 a legal entity (incorporated/established/founded) under the laws of [country] on [date] with Registration No.___ as [an Open/Closed Joint Stock Company/Limited Liability Company/Daughter Enterprise/Subsidiary/Full Liability Company/Joint Venture/Partnership/Representative Office etc] whose legal address is: [legal/postal address, including building/apartment No., street, city/state, zip code, country], duly represented by [name and title of representative], acting on the basis of [legal document, i.e. Charter/Statute/Articles of Association/Power of Attorney etc] on the one side/of the one part/as the party of the first part,” and Party 2, on the other side, hereinafter together/jointly referred to as the “Parties” and separately/individually as the “Party”, have entered into this Agreement on the following terms: _____; or the latter clause may be extended in the following way: In consideration of the mutual promises and covenants set forth/designated/stipulated/envisaged/defined/specified/contemplated/set out/contained in this Agreement, the Parties agree/have agreed as follows:

WHEREAS, Party 1 desires e.g. to retain the services of Party 2 in accordance (with)/in compliance (with)/in line (with)/in obedience (to)/in conformity with the terms and conditions of this Agreement; or

WHEREAS, Party 1 wishes e.g. to sell and Party 2 wishes to purchase e.g. corporate rights as a result of which Party 2 shall become the owner of  e.g. Daughter Enterprise;

NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, the Parties hereby/further agree as follows:

2. Subject of the Agreement/Subject-Matter of the Agreement

a) Party 1 hereby e.g. grants to Party 2, and Party 2 hereby accepts _____ described in Section ______ below subject to the conditions specified in this Agreement; or

b) Party 1 e.g. shall provide/render to Party 2 the following services/works/goods; or

c) Party 1 e.g. shall order and Party 2 shall undertake to fulfill the works at quality level. Herewith/Herein/At that/Thereat/Upon this/For this purpose/With that/Thereby/In this regard/To this end/In due respect Party 1 undertakes to make its best efforts /use its best endeavors/do its utmost within the boundaries of applicable legislation/ within the law; or

 d) Party 1 e.g. shall have the right to provide services to Party 2, by e.g. subcontracting the performance of such services to a third party, including to Party’s 1 affiliated entities/subsidiaries/affiliations/daughter enterprises/branches.

The provision of services shall start/begin/commence not later than [date];

The abovementioned provisions may be alternatively added by the reference to quality of rendered services, specifically:

a) With a high standard of quality Party’s 2 services shall be performed in a workmanlike and professional manner; or

b) Subject/Pursuant to the next sentence, Party 1 warrants that all services provided under this Agreement will be carried out with all due skill, care and diligence, in a good and workmanlike manner, and in conformity with prior practice;

Party 1 and Party 2 hereby agree that the fee for services shall be e.g. the Party’s 1 fair proportion which concerns each type of Service and, if the value of the services changes for Party 2 (with the exception of//except for//exclusive of the management charge);

Party1 and Party 2 shall be individually and solely responsible for e.g. the duly/timely/proper payment of any taxes that either may be required/demanded to pay in connection with this Agreement pursuant to/in accordance with/in compliance with/in conformity with/according to/in line with/in adherence with/adherent to/pursuant to the applicable legislation of Ukraine/Ukrainian legislation/the Law of Ukraine/ applicable law of Ukraine.

3. Term and Termination/Term of Agreement

This Agreement comes to an end if e.g. either Party forfeits/ breaks/ dissolves/ terminates/ rescinds/ reneges/ ends/ repudiates/ cancels it by giving a e.g. thirty (30) days written notice which either Party is entitled to do whenever _______;

  The Parties may terminate this Agreement e.g. prior to expiration of the term designated/specified/set forth/envisaged in Section ___ of this Agreement only by mutual agreement or in accordance with one of the provisions of this Section ____;

In the event/In case of termination of this Agreement, pursuant to Articles ___ or ___, the Parties shall e.g. fully make all settlements and payments within two months following the termination date. Upon the expiration of the specified term, this Agreement shall cease to be valid e.g. only upon the fulfillment by the Parties of their obligations hereunder and full completion/performance/effectuation/making of all settlements and payments.

Notwithstanding anything to the contrary contained/included/foreseen/comprised/constituted in the Agreement each Party shall e.g. have the right and option to terminate the Agreement any time after the passing of the e.g. 1st month of the term by delivering to the e.g. landlord 5 days prior written notice of such termination. If Party 1 elects//chooses/opts to terminate e.g. the lease pursuant to such option, then Party 1 shall e.g. peaceably vacate the demised premises and deliver possession thereof to Party 2 at the expiration of said 5 days, and, as of such termination date, neither party shall have any further liability or obligation to the other hereunder except for then accrued liabilities under the Agreement as of said termination date.

4. Liabilities

To the maximum/full/fullest extent permitted by law, Party1 shall e.g. in no event/under (in) no circumstances/on no account have any liability to Party2 for loss of business, loss of profits, loss of reputation or goodwill or for any other form of indirect or consequential loss, whether arising from negligence, breach of agreement, tort, breach of statutory duty or otherwise, irrespective of any notice by Party 2 of the likelihood/probability of any such indirect or consequential loss;

Party 1 shall e.g. provide and thereafter maintain insurance against all risks in respect of/regarding/as regards/pursuant to its property and any equipment used for the execution of this Agreement;

Party 1 has in force e.g. valid insurances in respect of its property, assets and business against such risks as are normally insured against by companies carrying on similar businesses for the full reinstatement or replacement value of such property and in respect of its business for such amounts as would in the/given circumstances be normal for such companies including, without limitation, adequate insurance cover against accident, damage, injury, third party risks, loss of profits and product liability.

5. Losses

Party 2 acknowledges/affirms/confirms that if Party 1 terminates the Agreement in e.g. two-year period e.g., the losses sustained or to be sustained by Party 1 will be substantially/significantly/considerably greater than USD ______.

6. Settlement of Disputes/Dispute Resolution and Governing Law

a) All disputes and controversies/discrepancies arising out from the performance of this Agreement will be resolved, if possible, through negotiations between the Parties; or

b)In the event that/Whenever/In case  any disputes or differences arise out of or in connection with this Agreement, the Parties shall settle such disputes or differences by means of negotiations between the Parties in an amicable manner; or

c) All disputes between parties shall be normally settled by means of good will and reciprocal engagement;

This usually has the following extension, either:

a) All disputes arising out in connection with this Agreement shall be finally resolved in accordance with applicable law of Ukraine; or

b) Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination (a “Claim”), will be referred to and finally resolved by arbitration under the Rules of e.g. the London Court of International Arbitration (“LCIA”), which rules are deemed to be incorporated by reference into this clause ___. 

The language of the arbitral proceedings will be e.g. English, and the procedure (insofar as it is not governed by the Rules of the LCIA) will be governed e.g. by English law. Insofar as they are legally able to do so, the Parties hereby agree to exclude the jurisdiction of English courts. 

7. Modifications and Amendments

Amendments and addenda to this Agreement shall be performed by appropriate annexes/amendments/modifications/alterations//changes//supplements which shall form an indivisible//inseparable//integral part of this Agreement and have equal force/is equally authentic/authoritative with it, or by additional agreements respectively;

No provision of this Agreement may be amended, modified or waived e.g. except by an instrument in writing entered into by the Parties and specifically designated as an amendment, modification or waiver.

8. Force-Majeure

a) The Parties hereto shall not be liable for full or partial failure to perform their obligations hereunder if e.g. such failure results from any cause beyond the reasonable control of the non-performing party (“Force Majeure”). Such circumstances shall include, without limitation: prohibitive actions by governmental authorities, local authorities, fire, flood, earthquake, war, strike; or

 b) The Parties shall not be liable for delays or non-performance of their obligations under this Agreement e.g. as a result of circumstances arising from Force Majeure that are attributable to any and all uncontrollable events including but not limited to: natural disasters, civil disturbances, government acts, regulations, fraud, strikes, embargoes on transported goods, war, insurrections, and annulments or termination of licenses, permissions, or authority; or

c) No Party shall be liable for any delay in performing of any of the obligations hereunder for e.g. any cause beyond its reasonable control, including but not limited to strikes and accidents, war, invasion, riot, rebellion, civil commotion, insurrection, fire, wind, lighting, explosion, volcanic eruption, earthquake, shipping accidents, freight embargoes, provided however, that such event affects the proper performance of obligations hereunder and did not exist as of the Commencement Date (“Force Majeure”).

 a) A Party that is not able to fulfill its obligations under this Agreement shall notify the other Party within ___ business days of the occurrence and termination of circumstances preventing such first Party from the performance of its obligations; or

 b) The facts explaining the existence of the abovementioned circumstances shall be proved by a competent body of e.g. Ukraine. If a party fails to notify the other party of the occurrence of such circumstances, such failing party shall not be entitled to refer to Force Majeure as a reason for the failure to fulfill its obligations. If the foregoing circumstances continue to exist for e.g. more than 3 months, each of the parties shall be entitled to terminate this Agreement by giving a written notice to the other party without imposing any financial sanctions upon such terminating party; or

c) If a Party is delayed in performance due to the Force Majeure circumstances, it shall give the other Party, in writing at the earliest possible time/as soon as possible/as soon as practicable, written notice of such delay or failure, together with a statement of the facts upon which it bases its claim of Force Majeure. The existence of Force Majeure circumstances and its nature should be confirmed by presentation by the relevant Party of the written certificate of the Chamber of Commerce and Industry of Ukraine. The Party so delayed or failing to perform due to an event of Force Majeure shall take all reasonable steps to minimize the effect of the event of Force Majeure; or

d) In case/Providing that/Whenever/If Force Majeure adversely affects any material part of this Agreement for a period in access of e.g. thirty (30) days, any adversely affected Party shall be entitled to terminate this Agreement by providing notice of termination to another Party. No Party shall be liable for default, damages or otherwise on account of a termination pursuant to this Article ___.

9. Miscellaneous

 This Agreement enters into effect upon signing and remains in effect until e.g. full performance of the obligations by the Parties;

 Any modifications or additions to this Agreement may be made by the Parties e.g. in a manner consistent with the signature requirements for this Agreement or any Addenda;

 All Annexes and Addenda duly signed by the Parties form an indivisible/inseparable and integral part of the Agreement;

 If any term of this Agreement should contradict e.g. Ukrainian legislation, then the Agreement shall not be applied in such section.

All further changes/alterations/modifications or amendments to this Agreement shall be reflected on attachments to this Agreement, executed by both parties;

 All documents related to the performance of this Agreement shall be sent to the other party at its address specified in the Agreement.

 Counterparts and Languages:

 a) This Agreement is executed in two copies, each for either Party. Each copy of the Agreement is composed both in the English and Ukrainian languages and is identical in meaning. The e.g. Ukrainian text shall prevail for the interpretation of this Agreement; or

 b) This Agreement has been signed in e.g. English and Ukrainian versions. In the event of any dispute, the Ukrainian version shall prevail. This Agreement has been made in two equally valid counterparts of each language version. Party 1 shall keep one counterpart of each and Party 2 shall keep the other counterpart; or

 c) The present Agreement is made in Ukrainian and English languages in duplicate/triplicate. In case of any differences priority is given to English version of the Agreement. All Attachments set forth in Article ___ shall be an inseparable part of this Agreement; or

d) This Agreement shall be produced in both the English language and the Ukrainian language. In the event of/Whenever there is a conflict between the Ukrainian language version and the English language version, the English language version shall prevail; or

 e) The Agreement is made in four copies in Ukrainian language, which shall be kept by each of the Parties. All copies are equally authoritative; or

 f) This Agreement has been drawn up in the English and Ukrainian languages and has been executed in 2 (two) copies, each having equal legal force and authenticity. In the event of a discrepancy between the Ukrainian and English texts of this Agreement, preference shall be given to the English text.

10. References and Notices

References to any Law shall be construed/interpreted as references to such Law as amended or re-enacted or modified by any other Law (whether before or after the date of this Agreement) and shall include any provisions of which they are re-enactments (whether with or without modification) and shall include subordinate legislation made under the relevant/corresponding/appropriate/respective/according/due/proper statute;

Any notices to be given hereunder shall be in writing and signed by the Party that gives such notice, or by its authorized representative, and shall be mailed, return receipt required, or delivered via courier or other means of hand delivery, or sent by fax (the receipt of which shall be proved by a transmission report) with obligatory further delivery of the original copy at the addresses of the Parties designated below;

All notices, requests, demands, claims, and other communications hereunder shall be presented in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly delivered if it is sent by personal delivery or by facsimile transmission to the following addresses or facsimile details;

IN WITNESS of which the Parties have signed and sealed this Agreement as a deed but have not delivered it until dating it.

Addresses and Banking Requisites

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