Once a licensing agreement has been signed by the licensor and the licensee, the parties should be able to rely on the terms of that agreement as written for the life of the contract. Sometimes, however, events that occur after signing of the contract may make some part of the agreement troublesome for one or more of the parties. If the parties agree that the contract should be changed to reflect the new circumstances, the changes should be made in a writing signed by all the parties to the original agreement. No matter how good the relationship may be between the parties, it is nevertheless imperative that any oral modifications or side agreements be recorded in a signed writing. This is so because in the event of a dispute between the parties, the parties will generally be held to the written terms of the contract, even if the parties had an oral understanding that modified or changed the terms of the written agreement.
To make clear that the written contract alone will be binding in the event of any misunderstanding over the performance of the agreement, the parties will often expressly provide that any changes or additions to the contract must be contained in a writing signed by authorized representatives of all parties to the original agreement.
Generally, any additions (“amendments”), changes (“modifications”), or waivers of any provision of the agreement should be memorialized in the same way as was the original contract. For example, if the vice-president of marketing signed the original licensing agreement on behalf of the licensor, an amendment or modification of the contract should be signed by that same officer. Ideally, if there are more than two parties to the contract, all parties should sign the amendment, even if the changes do not directly affect all of the parties.
Amendment: Example Clauses
|1. No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Licensor and Licensee.||Commentary: This is a typical amendment clause. It requires that any changes or additions to the agreement must be in writing and signed by authorized representatives of all parties. Including such clauses in a licensing agreement strengthens the presumption that the written terms of the agreement are binding rather than any subsequent oral understandings.|
|2. From time to time, [Licensor] may amend any of the terms and conditions set forth herein upon notice to the [Licensee].||Commentary: Unlike Example1, which requires that changes be reflected in a writing signed by all parties to the agreement, this clause permits the licensor to change or amend the contract merely by providing notice to the licensee. Further, the licensee has no right to change the agreement at all. This clause would nearly always be unacceptable.|