The Notices clause in the general provisions section of an agreement defines how notice is to be made, where notice may be made, and when the notice is deemed to have been received. The clause works in conjunction with other provisions of the agreement stating the circumstances when notice is required, such as a notice of changes a purchase agreement or receipt of claim or suit.
(a) How (language; signed writing)
All notices, requests, claims, demands and other communications hereunder shall be in writing [in the English language] [and shall be signed by a person duly authorized to provide such notice].
(b) Where (means; address)
Notices permitted or required to be given hereunder shall be deemed sufficient if given by (a) registered or certified mail, postage prepaid, return receipt requested, (b) private courier service, or (c) facsimile addressed to the respective addresses of the parties as first above written or at such other addresses as the respective parties may designate by like notice from time to time.
(c) When (time of receipt)
Such notice shall be deemed to have been given upon receipt.
All notices “shall be deemed to have been duly given (a) when delivered in person, (b) upon confirmation of receipt when transmitted by facsimile transmission or by electronic mail (but, in the case of electronic mail, only if followed by transmittal by national overnight courier or hand for delivery on the next Business Day), (c) upon receipt after dispatch by registered or certified mail, postage prepaid or (d) on the next Business Day if transmitted by national overnight courier (with confirmation of delivery).” (Agreement and Plan of Merger, March 17, 2011. Law Firms: Shearman & Sterling LLP and Latham & Watkins LLP).
Unless the party to be notified otherwise notifies the other party in writing as provided in this Section 14.05, and except as otherwise provided in this Agreement, notices shall be given to the Agent by telephone, confirmed by telex, telecopy or other writing, and to the Banks and to Borrower by ordinary mail, telecopy or telex addressed to such party at its address on the signature page of this Agreement, Credit Agreement And Guaranty, dated as of August 7, 2009
Change of Address
Any party to this Agreement may notify any other party of any changes to the address or any of the other details specified in this paragraph; provided, however, that such notification shall only be effective on the date specified in such notice or five Business Days after the notice is given, whichever is later.
Refusal of Delivery
Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal or inability to deliver. Verizon Merger
The Notice clause operates in conjunction with others sections of the agreement. Those provisions determine whether notice is an obligation or a condition precedent to the exercise of some right. Mark B. Peterson of Moss & Barnett cautions: “[b]e alert to whether a notice provision includes additional language that requires notice before certain rights can be exercised. Failure to comply with such a notice provision could impact your ability to seek a remedy under the contract.” (http://www.moss-barnett.com/CM/Newsletters/MB_Spring_2010_Boilerplate.pdf)
Daniel A. Batterman offers some Practical advice: “Make sure that this provision is tailored to actually notify you. For example, more and more companies want to provide notice via e-mail. I tend to resist this unless my client really wants it. Given the daily deluge of e-mail, the ease at which it can be deleted or overlooked, and unpredictable spam filters, I opt for traditional methods of notice and prefer having a piece of paper delivered. It’s harder to ignore. Again though, it depends upon what my client is comfortable with.” (http://www.battermanlaw.com/articles/boilerplate-contracts-part1.html)
If notice is permitted by email it should be given to a business—rather than a personal—address, since individual frequently move positions. Further, the burden should be placed on the addressee to notify the other parties of any change in address.