MISCELLANEOUS PROVISIONS (Oregon State Bar sample form ©) INTRODUCTORY COMMENT The miscellaneous provisions of an agreement should be tailored to the nature and subject matter of the agreement. 1. Binding Effect. This Agreement is binding on and inures to the benefit of the parties and their respective heirs, personal representatives, successors, and [permitted] assigns. 2. Assignment. Neither this Agreement nor any of the rights, interests, or obligations under this Agreement may be assigned by any party without the prior written consent of the other parties[, which consent will not be unreasonably withheld]. 3. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended or may be construed to confer on any person, other than the parties to this Agreement, any right, remedy, or claim under or with respect to this Agreement. 4. Notices. All notices and other communications under this Agreement must be in writing and will be deemed to have been given if delivered personally, sent by facsimile (with confirmation), mailed by certified mail, or delivered by an overnight delivery service (with confirmation) to the parties at the following addresses or facsimile numbers (or at such other address or facsimile number as a party may designate by like notice to the other parties): To [name of party]: [address] Attention: ______________________ Facsimile No.: __________________ With a copy to: [name, address, and facsimile number of lawyer or other interested person] Any notice or other communication will be deemed to be given (a) on the date of personal delivery, (b) at the expiration of the ______ day after the date of deposit in the United States mail, or (c) on the date of confirmed delivery by facsimile or overnight delivery service. 5. Amendments. This Agreement may be amended only by an instrument in writing executed by all the parties[, which writing must refer to this Agreement]. 6. Construction. The captions used in this Agreement are provided for convenience only and will not affect the meaning or interpretation of any provision of this Agreement. All references in this Agreement to “Section” or “Sections” without additional identification refer to the Section or Sections of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Whenever the words “include” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” 7. Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original and all of which together will constitute one and the same agreement. 8. Facsimile Signatures. Facsimile transmission of any signed original document, and retransmission of any signed facsimile transmission, will be the same as delivery of an original. At the request of any party, the parties will confirm facsimile transmitted signatures by sign ...

1. MISCELLANEOUS PROVISIONS
(Oregon State Bar sample form ©)
INTRODUCTORY COMMENT
The miscellaneous provisions of an agreement should be
tailored to the nature and subject matter of the agreement.
1.
Binding Effect. This Agreement is binding on and inures to the
benefit of the parties and their respective heirs, personal
representatives, successors, and [permitted] assigns.
2.
Assignment. Neither this Agreement nor any of the rights,
interests, or obligations under this Agreement may be assigned
by any party without the prior written consent of the other
parties[, which consent will not be unreasonably withheld].
3.
No Third-Party Beneficiaries. Nothing in this Agreement,
express or implied, is intended or may be construed to confer on
any person, other than the parties to this Agreement, any right,
remedy, or claim under or with respect to this Agreement.
4.
Notices. All notices and other communications under this
Agreement must be in writing and will be deemed to have been
given if delivered personally, sent by facsimile (with
confirmation), mailed by certified mail, or delivered by an
overnight delivery service (with confirmation) to the parties at
the following addresses or facsimile numbers (or at such other
address or facsimile number as a party may designate by like
notice to the other parties):

2. To [name of party]:
[address]
Attention: ______________________
Facsimile No.: __________________
With a copy to: [name, address, and facsimile number of lawyer
or other interested person]
Any notice or other communication will be deemed to be given
(a) on the date of personal delivery, (b) at the expiration of the
______ day after the date of deposit in the United States mail,
or (c) on the date of confirmed delivery by facsimile or
overnight delivery service.
5.
Amendments. This Agreement may be amended only by an
instrument in writing executed by all the parties[, which writing
must refer to this Agreement].
6.
Construction. The captions used in this Agreement are provided
for convenience only and will not affect the meaning or
interpretation of any provision of this Agreement. All

3. references in this Agreement to “Section” or “Sections” without
additional identification refer to the Section or Sections of this
Agreement. All words used in this Agreement will be construed
to be of such gender or number as the circumstances require.
Whenever the words “include” or “including” are used in this
Agreement, they will be deemed to be followed by the words
“without limitation.”
7.
Counterparts. This Agreement may be executed in counterparts,
each of which will be considered an original and all of which
together will constitute one and the same agreement.
8.
Facsimile Signatures. Facsimile transmission of any signed
original document, and retransmission of any signed facsimile
transmission, will be the same as delivery of an original. At the
request of any party, the parties will confirm facsimile
transmitted signatures by signing an original document.
9.
Further Assurances. Each party agrees to execute and deliver
such other documents and to do and perform such other acts and
things as any other party may reasonably request to carry out
the intent and accomplish the purposes of this Agreement.
10.
Time of Essence. Time is of the essence with respect to all dates
and time periods set forth or referred to in this Agreement.
11.
Expenses. Except as otherwise expressly provided in this
Agreement, each party to this Agreement will bear its own
expenses in connection with the preparation, execution, and
performance of this Agreement and the transactions
contemplated by this Agreement.

4. 12.
Waiver. Any provision or condition of this Agreement may be
waived at any time, in writing, by the party entitled to the
benefit of such provision or condition. Waiver of any breach of
any provision will not be a waiver of any succeeding breach of
the provision or a waiver of the provision itself or any other
provision.
13.
Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the state of Oregon,
without regard to conflict-of-laws principles.
14.
Attorney Fees. If any arbitration, suit, or action is instituted to
interpret or enforce the provisions of this Agreement, to rescind
this Agreement, or otherwise with respect to the subject matter
of this Agreement, the party prevailing on an issue will be
entitled to recover with respect to such issue, in addition to
costs, reasonable attorney fees incurred in the preparation,
prosecution, or defense of such arbitration, suit, or action as
determined by the arbitrator or trial court, and, if any appeal is
taken from such decision, reasonable attorney fees as
determined on appeal.
[The following alternative provision for attorney fees may be
applicable for contracts when it may be advisable to anticipate
bankruptcy.]
Alternative 14.
Attorney Fees. With respect to any dispute relating to this
Agreement, or in the event that a suit, action, arbitration, or
other proceeding of any nature whatsoever is instituted to
interpret or enforce the provisions of this Agreement, including,

5. without limitation, any proceeding under the U.S. Bankruptcy
Code and involving issues peculiar to federal bankruptcy law or
any action, suit, arbitration, or other proceeding seeking a
declaration of rights or rescission, the prevailing party will be
entitled to recover from the losing party its reasonable attorney
fees, paralegal fees, expert fees, and all other fees, costs, and
expenses actually incurred and reasonably necessary in
connection therewith, as determined by the judge or arbitrator at
trial, arbitration, or other proceeding, or on any appeal or
review, in addition to all other amounts provided by law.
15.
Arbitration. Any dispute, controversy, or claim arising out of or
relating to this Agreement will be settled by arbitration. Unless
the parties otherwise agree, the arbitration will be administered
by [name of arbitration association]. Judgment on the award
rendered by the arbitrator may be entered in the circuit court in
the county in which the arbitration occurs, and the resolution of
the disputed matter as determined by the arbitrator will be
binding on the parties. There will be one arbitrator who will be
a [retired federal or state judge within a minimum of ___ years
of judicial experience / business lawyer / other] or will have
such alternate qualifications that are mutually agreeable to the
parties. Any arbitration will be conducted in _________,
Oregon, in accordance with the following provisions:
(a)
Except as otherwise provided in this Section ____, the
arbitration will be conducted in accordance with [identify
arbitration rules].
(b)
Arbitration proceedings under this Agreement may be
consolidated with arbitration proceedings pending between

6. other parties if both arbitration proceedings arise out of the
same transaction or relate to the same subject matter.
Consolidation will be by order of the arbitrator in any of the
pending cases or, if the arbitrator fails to make such an order,
the parties may apply to any court of competent jurisdiction for
such an order.
(c)
A party may, without inconsistency with this Agreement, seek
from a court any interim or provisional relief that may be
necessary to protect the rights or property of that party pending
the establishment of the arbitration (or pending the arbitrator’s
determination of the merits of the dispute, controversy, or
claim).
(d)
The arbitrator will have authority to issue preliminary and other
equitable relief.
(e)
Discovery proceedings of the type provided by the Oregon
Rules of Civil Procedure will be permitted both in advance of
and during recesses of the arbitration hearings. Any dispute
relating to such discovery will be resolved by the arbitrator.
(f)
The arbitrator will have the discretion to order a prehearing
exchange of information by the parties and an exchange of
summaries of testimony of proposed witnesses.
(g)

7. The arbitrator will have the authority to award any remedy or
relief that an Oregon court could order or grant, including
specific performance of any obligation created under this
Agreement, the issuance of an injunction, or the imposition of
sanctions for abuse or frustration of the arbitration process,
except that the arbitrator will not have authority to award
punitive damages or any other amount for the purpose of
imposing a penalty as opposed to compensating for actual
damage suffered or actual loss incurred.
(h)
The arbitration award must be in writing, must be signed by the
arbitrator, and must include a statement regarding the
disposition of any claim. The award must be kept confidential to
the fullest extent permitted by law.
16.
Injunctive and Other Equitable Relief. The parties agree that the
remedy at law for any breach or threatened breach by a party
may, by its nature, be inadequate, and that in addition to
damages, the other parties will be entitled to a restraining order,
temporary and permanent injunctive relief, specific
performance, and other appropriate equitable relief, without
showing or proving that any monetary damage has been
sustained.
17.
Venue. Any action or proceeding seeking to enforce any
provision of this Agreement or based on any right arising out of
this Agreement must be brought against any of the parties in
_________ County Circuit Court of the State of Oregon or,
subject to applicable jurisdictional requirements, in the United
States District Court for the District of Oregon, and each of the
parties consents to the jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding

8. and waives any objection to such venue.
18.
Exhibits. The exhibits referenced in this Agreement are part of
this Agreement as if fully set forth in this Agreement.
19.
Severability. If any provision of this Agreement is deemed to be
invalid or unenforceable in any respect for any reason, the
validity and enforceability of such provision in any other
respect and of the remaining provisions of this Agreement will
not be impaired in any way.
20.
Entire Agreement. This Agreement (including the documents
and instruments referred to in this Agreement) constitutes the
entire agreement and understanding of the parties with respect
to the subject matter of this Agreement and supersedes all prior
understandings and agreements, whether written or oral, among
the parties with respect to such subject matter.
Caveat: This form is illustrative only. Each lawyer must depend
on his or her own legal research, knowledge of the law, and
expertise in using or modifying this form.
Assignment No. 2
Employment Agreements
Background and Assumptions
Singer/musician Jack White was so excited to perform at a
recent concert at a county fair in Oregon that he decided to
accept a job offer from the Fair’s Assistant Deputy
Administrative Coordinator to the Assistant Personnel Director
for Special Summertime Events. The letter of intent was
quickly prepared using a “boiler plate” form as the starting

9. point, which someone at the Fair had found online. It was also
prepared under strict orders from the busy fair manager to “just
keep it simple because Jack’s in town and can sign it
immediately and why waste funds on legal fees when we can do
it in house.” (The Fair’s regular law firm, Bluster, Fluster, and
Idono, was not available to review the agreement due to a
malpractice case in which it was the defendant.)
Jack immediately initialed the letter of intent without reading it,
stating that “I’m sure it reflects our deal” and that “Believe me,
a seven-nation army couldn’t hold me back from doing this
gig.” It was then hastily initialed by the Fair’s Deputy
Administrative Assistant to the Assistant Personnel Director for
Special Employee Affairs because the Fair General Manager,
who usually signed contracts, was off duty that day.
The “letter of intent” included the following material statements
and was signed by both parties:
1. Jack would serve as the “creative director” for the event and
also “agree to perform at least two concerts per summer at the
fair along with his former band partner Meg White under the
name White Stripes.”
2. The position would be on a “full-time, regular basis.”
3. Jack must “Refrain from performing similar services for any
other employer within the continental United States.”
4. Jack’s music must not “discompose, disquiet, disturb,
perturb, agitate, upset, or destroy the capacity of the audience
for peaceful resolve.”
5. The parties agree to resolve all disputes “of any kind or
nature whatsoever” through mandatory binding arbitration, and
not court.
6. That the term of the agreement is “one year, and that the
agreement will self-renew for successive periods of one (1) year
each unless either party notifies the other of his/its intent to
cancel within one day of the date of execution of the letter of
intent.”
7. Payment would be 10% of gross “gate” proceeds per concert.
8. The parties “agree to be reasonable.”

10. This was the only agreement that the parties signed.
Assignment
Please respond to the following:
The day after he signed the letter of intent, Jack left town on a
whim to perform at Carnegie Hall in New York City to a sold-
out crowd, including Mayor Bill de Blasio and Prince Charles.
Two days later, he called the Fair and left a message, stating
that he had second thoughts and “would not take this gig (job).”
The Fair now wonders about the status of letter of intent and
asks you for assistance as follows:
1. Briefly identify the nature of each of the problems that
could make the letter of intent vague or unenforceable.Note the
specific provisions and circumstances that support your
observations.
2. Explain whether the “covenant not to compete” and the
“mandatory arbitration provision” is enforceable in Oregon,
assuming of course that the letter of intent is itself enforceable.
(See Oregon Revised Statutes Sec. 36.620(5) and 653.295.)
3. Prepare a list of all of the contract provisions that should
be included in a reasonably complete employment agreement
with a performer such as Jack White, including special
provisions and boilerplate provisions.