Parties can use this Amendment Agreement to amend or modify various types of commercial contracts. Commercial contracts routinely contain an amendment and modification provision, which parties often refer to as a no-oral-agreements or no-oral-modifications clause. Parties often include these provisions in the section containing miscellaneous provisions at the end of the agreement. Additionally, parties use these provisions to address the way the contracting parties may amend or modify the agreement. Further, they typically require that all amendments and modifications must be:
- In writing; and
- Signed by:
- each of the parties; or
- the party against which the amendment or modification is to be enforced.
Some provisions also require the signed writing to be identified as an amendment to the underlying agreement.
Using no-oral-amendments and no-waiver provisions is widespread and common. Nevertheless, in practice, many contracting parties operate informally. Thus, parties waive or modify contractual rights and obligations throughout the term of the agreement without executing any written records. Therefore, many courts uphold oral amendments, modifications, and waivers based on the parties’ words and actions, even when contracts contain express no-oral-amendments and no-waiver provisions.
To prevent the enforcement of an unintended oral modification or waiver, contracting parties should execute appropriate written documentation when:
- Waiving its rights or the opposing party’s non-performance.
- Making or accepting any modifications or other amendments to the underlying agreement.
Parties should executive appropriate written documentation regardless of whether an agreement contains a no-oral-amendments or no-waiver clause.
Parties to many types of commercial contracts can use this generic form Amendment Agreement. Thus, Parties should use this agreement when agreeing to modify contracts by removing, adding, or changing one or more contract provisions. Once effective, the terms of the amendment apply for the remainder of the contract term.
Amendment or Waiver?
Parties can achieve objectives by obtaining a waiver or consent from the other party instead of formally amending the agreement. This approach may be helpful if the other party refuses to permanently modify a provision but agrees to grant a one-time waiver for a particular instance of non-performance.
Stand-Alone Amendment or Amended and Restated Agreement?
Parties must read and interpret the amendment alongside the underlying contract to fully understand its legal and practical effects. If a proposed amendment is complicated, or if the parties have previously executed other stand-alone amendments, parties may instead amend and restate the entire contract. This involves preparing and executing a single agreement that reproduces all the terms and provisions of the contract as modified to reflect the cumulative effect of all amendments agreed to on or before the date of the amended and restated agreement.
This Agreement is a stand-alone amendment agreement.
This Amendment Agreement assumes that:
- These terms are being used in a business-to-business transaction. Those intending to involve a consumer contract should not use this Amendment Agreement. Such consumer contracts are beyond the scope of this resources because they may involve specific legal and regulatory requirements and practical considerations.
- The parties to the agreement are US entities and the transaction takes place in the US. Parties may need to modify these terms to comply with local laws. Thus, parties should consider modifying these terms if organized or operating in a foreign jurisdiction. Additionally, parties should consider modifying these terms if their transactions take place in a foreign jurisdiction.
- There are two parties to the underlying agreement and both are legal entities. The parties must make adjustments if:
- either contracting party is an individual person; or
- there are more than two parties to the underlying agreement.
- These terms are not industry-specific. This Agreement doesn’t account for any industry-specific laws, rules, and regulations that may apply to certain transactions, products, or services. For example, loan agreements customarily require more comprehensive terms and provisions in an amendment agreement.
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