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且行且译(翻译专用)

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合同标准条款——Third Party Beneficiaries  

2012-08-12 10:53:02|  分类: 默认分类 |  标签: |举报 |字号 订阅

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Third Party Beneficiaries

Third Party Beneficiaries clause determines whether non-parties have rights to enforce contract terms. The clause may either prescribe or, less frequently, grant third party rights. Where rights are granted, drafters should carefully consider the specific rights granted and whether the parties can amend the contract with or without the third party’s consent.

The Third Party Beneficiaries clause is frequently paired with the entire agreement clause or the parties in interest clause.

Standard

Third Party Beneficiaries. This agreement does not and is not intended to confer any rights or remedies upon any person other than the parties.

OR

Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. 

Alternatives

(a) Specific Rights Carve-Out

[Except as set forth in _________], this agreement does not and is not intended to confer any rights or remedies upon any person other than the parties.

(b) Specific Beneficiaries Carve-Out

This agreement does not and is not intended to confer any rights or remedies upon any person other than the parties, except that it is expressly agreed that the [Company Stockholders, the Option Holders and the Warrant Holders] are intended beneficiaries of Section [________].

(c) Reservation of Rights to Amend; No Consent Required

This agreement confers rights and remedies upon [named beneficiaries] as set forth in section [___]. No person, other than the parties and such [named beneficiaries], has any rights or remedies under the agreement. The parties reserve the right to amend or terminate this agreement with the consent of the [named beneficiaries].

(d) Consent Required

This agreement confers rights and remedies upon [named beneficiaries] as set forth in section [___]. No person, other than the parties and such [named beneficiaries], has any rights or remedies under the agreement. The parties may not amend or terminate this agreement without the prior written consent of the [named beneficiaries].

Discussion

Historically, privity of contract was required in order to sue and seek damages under a contract. Chitty on Contracts (2004) states “[t]he common law doctrine of privity of contract means that a contract cannot (as a general rule), confer rights or impose obligations arising under it on any person except the parties to it.”

However, there are many situations where an agreement does benefit and is intended to confer rights on third parties. Tina Stark writes: “[t]he right of a third party to sue under a contract made for the third party’s benefit is now a settled area of American law. As a general rules, a third party beneficiary has enforceable rights if the terms of the contract or the circumstances surrounding the transaction manifest an intent to benefit the third party.” Tina L. Stark, Negotiating and Drafting Contract Boilerplate, page 99.

 

IN ADDITION:

Successors and Assigns; No Third Party Beneficiaries.  Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto.  There are no third party beneficiaries of this Agreement.
 
BINDING NATURE; NO THIRD PARTY BENEFICIARY. The terms and provisions of this Agreement shall be binding upon and inure to the benefit of
the parties, and their respective successors and assigns, and is made solely and specifically for their benefit. No other person shall have any rights, interest or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.

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