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what does this paragraph mean in a business contract?

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eric100

Junior Member
What is the name of your state (only U.S. law)? Illinois

Hi,

I'm a consultant and I plan to do work for a client. I was reading the contract and I saw this:

Both parties shall have the right upon the happening of any Default, providing written notice to the other party to
proceed at any time or from time to time to protect and enforce all rights and remedies available to each
party, by suit or any other appropriate proceedings, whether for specific performance of any covenant, term or
condition set forth in this Agreement, or for damages or other relief, or proceed to take any action authorized or
permitted under applicable law or regulations, in equity or pursuant to this Agreement.

So what does the above mean?

The word Default I assume is referring to this:

“Default” shall mean any of the following: (i) if any representation or warranty, expressed or implied, contained in this
Agreement shall prove at any time to be incorrect or misleading in any material respect, and CONSULTANT fails
to correct such breach of misrepresentation or warranty within ten (10) days of CLIENT’s written notice thereof;
(ii) if CONSULTANT shall fail to comply with the terms of any covenant, condition, agreement or any express or
implied warranty contained in this Agreement, and CONSULTANT fails to correct such non-compliance within
ten (10) days of CLIENT’s written notice thereof; or (iii) if the services hereunder are not performed in good
faith and in accordance with the provisions of this Agreement, and CONSULTANT fails to correct such failure in
performance within ten (10) days of CLIENT’s written notice thereof.

Thanks for your help!
 


justalayman

Senior Member
So what does the above mean?
it means somebody likes writing a lot. It also means it was written by a lawyer that is concerned with job security or a layman that thinks they are an attorney.

and for sure that either one that did write it got poor grades in their grammar classes. I thought I was good at writing run on sentences.


was that definition of default within the contract or did you get it elsewhere?

Both parties shall have the right upon the happening of any Default, providing written notice to the other party to
proceed at any time or from time to time to protect and enforce all rights and remedies available to each
party, by suit or any other appropriate proceedings, whether for specific performance of any covenant, term or
condition set forth in this Agreement, or for damages or other relief, or proceed to take any action authorized or
permitted under applicable law or regulations, in equity or pursuant to this Agreement.
Maybe I'm missing something but from what I can see, it doesn't mean anything. It appears to be a rambling statement that neither reserves any right or demands a particular action of either party by the other party.
 

eric100

Junior Member
yes, the definition of default that i provided came from the contract. so what do the 3 points in default mean with regard to the 10 days mentioned?
 

eric100

Junior Member
also another question i have about the contract is what do the following 2 paragraphs mean:

Dispute Resolution

Subject to Section 2 of this Agreement, any dispute under this Agreement that is not settled by agreement between the
parties may be settled by appropriate legal or equitable proceedings, including arbitration, but not including trial
by jury. It is understood and agreed that if any such dispute is litigated, it shall be for the purpose of obtaining
a judicial determination of the question of law and/or fact which is fair and reasonable; provided, further, that
pending such judicial determination, CONSULTANT shall proceed in accordance with CLIENT’s written directions
in relation to Consultant's performance hereunder.

WAIVER OF JURY TRIAL

CLIENT AND CONSULTANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THE CLIENT
AND/OR CONSULTANT ARE PARTIES ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS AGREEMENT. IT
IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS
AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE
NOT PARTIES TO THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY
CLIENT AND CONSULTANT AND CLIENT AND CONSULTANT HEREBY REPRESENT AND WARRANT THAT NO
REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY AN INDIVIDUAL TO INDUCE THIS WAIVER
OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. CLIENT AND CONSULTANT FURTHER
REPRESENT AND WARRANT THAT THEY HAVE BEEN REPRESENTED OR HAVE HAD THE OPPORTUNITY TO BE
REPRESENTED, IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY LEGAL COUNSEL,
SELECTED OF THEIR OWN FREE WILL, AND THAT THEY HAVE HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER
WITH COUNSEL.
 

justalayman

Senior Member
haven't looked. You asked about the clause posted above that.



“Default” shall mean any of the following: (i) if any representation or warranty, expressed or implied, contained in this
Agreement shall prove at any time to be incorrect or misleading in any material respect, and CONSULTANT fails
to correct such breach of misrepresentation or warranty within ten (10) days of CLIENT’s written notice thereof;
(ii) if CONSULTANT shall fail to comply with the terms of any covenant, condition, agreement or any express or
implied warranty contained in this Agreement, and CONSULTANT fails to correct such non-compliance within
ten (10) days of CLIENT’s written notice thereof; or (iii) if the services hereunder are not performed in good
faith and in accordance with the provisions of this Agreement, and CONSULTANT fails to correct such failure in
performance within ten (10) days of CLIENT’s written notice thereof.
It is a definition of a default in regards to the contract. If any of the actions described are present, there is a default. The 10 days is a time limit allowed to correct the concern listed in that section. After the 10 day period which begins only after written notice, unless the corrective action listed is taken, there is a default.
 

eric100

Junior Member
there is a clause in the contract that allows for termination of the agreement with 14 days of notice. does that mean if there is a default one thing i can do is to terminate the agreement?
 

justalayman

Senior Member
eric, all the contents of a contract are important to the contract. They interact with each other and need to be read together so context can be considered. While a simple question is fine, I cannot read the entire contract and tell you what it all means. If you have this many questions, you really need to flip a lawyer a couple bucks and have him read it and provide an opinion.
 

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