Related Categories:
Jurisdiction: Federal
Description
Amendment Agreement
Summary
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.
Details
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.
Assumptions
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.
Additional Documents
Legal Disclaimers
Helix Compliance, LLC (“Helix”) is not a law firm, and Helix’s employees and representatives are not acting as your attorney. Helix provides a technology-based platform for those seeking to prepare their own legal documents. Using Helix’s system-generated documents does not create an attorney-client relationship between you and Helix or any Helix employee or representative. Therefore, your communications with Helix do not constitute privileged communications. Likewise, neither the attorney-client privilege nor the work product doctrine protect your communications with Helix. Helix is not your lawyer in any way, shape, or form.
Using Helix’s documents is not a substitute for the expertise of an attorney. Thus, you should not use Helix’s system-generated documents as a substitute for legal advice. Additionally, you should not construe Helix’s system-generated documents as legal advice. Helix does not review any information provided to it for legal accuracy or sufficiency. Helix does not apply the law to the facts of your situation, and Helix does not draw legal conclusions. Further, Helix does not provide opinions about your selection of documents. Users seeking legal advice should consult a qualified licensed attorney.
Even though Helix seeks to ensure that document content is up-to-date, laws change rapidly. Therefore, Helix does not guarantee that each document is completely current. The law differs in each legal jurisdiction and may be applied differently depending on your factual circumstances. If you are unsure whether your situation requires a specific document or whether the document’s contents are legally sufficient for your specific purposes, you should consult a qualified licensed attorney.
This material is for informational purposes only. Helix is not responsible for any loss, injury, claim, liability, or damage related to your use of Helix documents. Your use of this material and Helix documents is at your own risk.
Comments from the Author
Amendment Agreement