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Entire Agreement Clause

Many forms of agreements, particularly commercial contracts, tend to contain a variety of so-called “boilerplate” clauses. They are routinely used clauses with quite standard wording.

One type of boilerplate clause that is often included in contracts is the “entire agreement” clause. It is actually a very important clause if something goes wrong and the parties get into a dispute.

Entire agreement clauses are mostly meant to prevent the parties of a written agreement from raising claims that pre-contractual statements constitute additional terms of the agreement. Usually, the parties negotiate orally, by email or other means before the agreement, and not everything stated in that phase is meant to become a part of the final, written agreement.

Without the entire agreement clause, there is also a risk that the pre-contractual negotiations could be considered some other form of side agreement, or a collateral warranty.

Therefore, the object of an entire agreement clause is to define the material embodiment of an agreement and make sure that any other statement does not have contractual force.

Most entire agreement clauses also intend to restrict claims based on misrepresentation (or equivalent claims). However, it might be useful to include a wording that liability for fraud is not excluded or limited.

Older Agreements and Entire Agreement Clause

It is crucial to understand that by their very nature, entire agreement clauses supersede any prior understandings. However, it depends on the wording of the clause whether prior written agreements in other subject matters would be superseded.

If the agreement is to supersede an older agreement between the parties, and you wish the agreement to cancel the older agreement, it is recommended to do this by way of a separate clause instead of amending the entire agreement clause to deal with the issue. Another good option is to terminate the older agreement in a standalone document.

Multiple Agreements and Entire Agreement Clause

It is often the situation that there are several agreements between the parties in a particular matter. For example, if you run a website, you probably have (or at least you should have) two agreements between you and the user of the website: Terms of Use and Privacy Policy. In terms of use, it would be beneficial to have an entire agreement clause. But how to include Privacy Policy to be part of the whole agreement?

Luckily, it is completely possible to have multiple agreements combining the entire agreement between parties. You should just make sure that the entire agreement statement in all relevant formal documents reflects this.

This agreement and [list other relevant agreements] constitute the entire agreement between the parties

If there is a chance of conflict with another agreement it might be best to include wording specifying which document should prevail in the event of inconsistency. Rather than amending the entire agreement clause, it is recommended to use a separate clause.

Tips:

If the agreement includes schedules or any other attachments, check that the definition of agreement includes the schedules and any such attachments. (You can also mention them in the entire agreement clause.)

Divide the clause into distinct clauses so that it is easier to find the rest of the agreement valid in case any other part would be found to be invalid or unenforceable.

If there are any documents that are specifically intended to be overruled, it should be specifically mentioned in the agreement.

We have a sample entire agreement clause drafted by a lawyer in our Free Legal Resources Library. You can get access by signing up below.

Anne Nyström

anne.nystrom@belegally.com

LL.M. Anne Nyström is Co-Founder of BeLegally. She practises law at Vedinor Law Offices in Finland, providing advice to clients worldwide. Her focus areas include international and European e-commerce, intellectual property, marketing, and social media. In her free time, she enjoys art and culture in many forms, exercising in nature and writing fictitious adventures about sassy ladies in the charge of their own life. Anne is always happy to connect, so feel free to contact her at anne.nystrom@belegally.com or on social media.

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