Spross & Associates, PLLC

Mutual Waiver Provision in Contracts

I am not sure where this came from, but in the last month or so I have seen more one way waiver provisions in contracts than I have seen in the last 5 years.  Make sure a waiver provision is mutual unless there is a defendable reason not to make it so.  And if there is no reason, then when you are caught on it, just give in.  Don't use the "it's standard" argument.  

For anyone that is wondering, the waiver provision in an agreement is the provision that says any waiver of any provision of an agreement must be in writing.

Releases in Employment Separation Agreements

One of the things that people don’t think about when they are putting together or executing Employment Separation Agreements as part of their employment is whether or not anything should be excluded from the release.  Employment releases are very broad and cover EVERYTHING, but what if the employee was an officer?  Most Bylaws and other corporate governance documents have an indemnification obligation on the part of the company for actions by the officer/employee in their role as an employee.  Normally, an individual is not named in a lawsuit against a company; however, there are times when the individual does get named (shareholder suits for instance). 

 

If an employee is signing an Employment Separation Agreement, I would suggest that there should be a carve-out for “indemnification obligations that arise pursuant to the Bylaws [or any other agreement that gives the employee indemnification]”.  If this is not carved-out from the release, there is a very good argument that the employee has released any indemnification claim.