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TexLaw
TexLaw, Attorney
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I have a question about the honesty of a supposedly simple

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I have a question about the honesty of a supposedly simple contract. It seems like the usage of the word "notwithstanding" may be set up to trick me as well as the unnecessary complexity of 3 sections. I'm not sure, I could be wrong. This is why I'm asking you.

The following is from a MOU that was drafted to void the non-compete clause inside of a previous agreement (Affiliate Agreement). The previous agreement was made for me (Jacob) personally doing business as "Company 1". But I also have a second company "Company 2" that does business outside of the scope of the agreement, so I had to have them (Trickster Inc) draft this to make sure that my issues with them as Company 1 are treated completely separately from Company 2 which should not be included in the agreement even though I own both.

Here is the term in question:

1. Jacob represents and warrants to Trickster Inc with the intent that Trickster Inc will, in reliance upon those representations, enter into this MOU, that, as of the Effective Date, Jacob is not in breach of any term or condition of the Affiliate Agreement, and that those provisions in the Affiliate Agreement preventing Jacob from competing with the business of Trickster Inc or otherwise soliciting the customers of Trickster Inc remains in full force and effect.

2. Trickster Inc acknowledges and agrees that, notwithstanding any contrary provision in the Affiliate Agreement, those provisions in the Affiliate Agreement preventing Jacob from competing with the business of Trickster Inc or otherwise soliciting the customers of Trickster Inc remains in full force and effect will not apply to the Company 2 business conducted by Jacob under the name and style “Company 2”.

3. Except as expressly provided in Paragraph 2 above, the provisions of the Affiliate Agreement will survive the execution and delivery of, and will not merge in this MOU.


What do you make of this? Is this doublespeak? Is it safe to sign this and do business as Company 2 without worrying about them holding me to its ironclad non compete clause they have me locked into as Company 1?

Zachary D. Norris :

Hi,

Zachary D. Norris :

I'm reviewing your question and will provide you with an answer shortly

Zachary D. Norris :

OK

Zachary D. Norris :

Notwithstanding is a terrible word...but is used all the time.

Zachary D. Norris :

You can read it to mean "in spite of"

Zachary D. Norris :

So Tricketer agrees that in spite of or even though there may be contrary provisions in the Affiliate Agreement, it only applies to Jacob and shall not apply to company 2

Zachary D. Norris :

I can provide you with a basic legal reading of what the document says, but this is not a "legal opinion" on which you could rely on in court.

Zachary D. Norris :

So, a basic legal reading is that Trickster is giving permission to Company 2 to conduct its business, which might otherwise be considered in competition with Trickster, based on your representations that you are not in breach of the contract.

Please let me know if that makes sense, or whether you need further clarification.
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