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A company recently offered me a great position as the head of their IT Security division.

The job being offered is contingent upon my signature signing a lengthy employment, NDA, Noncompete, contract that has a few questionable lines I could really use help in understanding them as normal English.

What does the following section from the employment contact mean in plain English:

Termination.
The binding provisions may be terminated by mutual written consent of the parties; Provided, however, that the termination of the Binding Provisions shall not affect the liability of a party for breach of any of the Binding Provisions prior to termination.

Can this be explained in plain English to assist me in making my decision on whether or not to sign the contract?

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    While this question is likely on topic. "A lengthy employment, NDA, Noncompete, contract that has a few questionable lines" sounds like it is worth you getting proper piece of mind by sitting down with a lawyer. Hopefully as a "a great position as the head of their IT Security division." pays enough that it is not a huge issue financially if you accept (and if the lawyer finds stuff that makes you not want to accept any more, then it is money well spent also).
    – Frames Catherine White
    Commented Feb 23, 2018 at 6:08
  • @LyndonWhite Appreciated and supported. Myself, I’m sticking to Pro Se, as I’ve wasted too much on lawyers doing bare minimum, and while I do the heavy lifting to achieve the desired legal goal. And yes, I know, there’s good ones out there, and it’s a matter of due diligence in finding and retaining, but time was of the essence and needed it done quickly, in addition to my assessment that it didn’t reach the level of legal counsel required to spend and use the necessary resources to do said due diligence, for this piece of the contract. Perhaps the definitive agreement, but not the NDA and NC
    – user15669
    Commented Mar 2, 2018 at 0:56

2 Answers 2

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The binding provisions may be terminated by mutual written consent of the parties

This means that you and the company can let each other off the hook, if both of you agree. This is pretty meaningless, since that is naturally something that's possible.

Provided, however, that the termination of the Binding Provisions shall not affect the liability of a party for breach of any of the Binding Provisions prior to termination.

If both you and the company agree to let each other off the hook, you are letting each other off the hook for things you do afterwards. If you do something that violates the contract, and then later get the company to terminate the provisions, you're still on the hook for what you did before the company agreed to the termination. This, again, is literally meaningless; any provision can be modified with mutual consent, so if you and the company wanted to release each other for things done before the release, you can still do that. However, it does have the effect of making this the default. So if you and the company agree to a release, and the release does not specify whether it applies to past acts, then the company can point to this provision to say that the release does not apply to past acts.

So this part of the contract isn't important so much for your decision now whether to sign the contract, but if the contract is ever terminated, this part of the contract will be important to keep in mind in interpreting what that termination means.

BTW, you mentioned a noncompete clause. You might want to look into whether that's enforceable in your jurisdiction. Many places have laws or court rulings limiting the enforceability of such provisions.

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  • Thanks for the great feedback. I posted a question looking for some feedback/direction for finding the enforceability of a non compete clause in Houston TX. Should I search for case precedent from within the Jurisdiction, search for statutory law in the latest TX Revised Code book, or I’m correct In assuming, I’d need to research both to have a more definitive answer??
    – user15669
    Commented Feb 22, 2018 at 23:13
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Termination. The binding provisions may be terminated by mutual written consent of the parties; Provided, however, that the termination of the Binding Provisions shall not affect the liability of a party for breach of any of the Binding Provisions prior to termination.

It basically says that you and the company can free each other from the contract or any part of it — by signing another agreement. This is limited though: if either of you have breached the original contract and become liable (e.g. one of you owes the other heaps of money for damages), then those liabilities will remain.

... which is nonsense of course — because you always can free each other from any liabilities to each other if you both want it.

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    If two parties can always dissolve a contract by mutual agreement, what is the purpose of outlining this explicitly in the contract like this? Does this wording somehow constrain removal of binding provisions to only written (vs. say verbal) agreement?
    – Dan Bryant
    Commented Feb 22, 2018 at 15:41
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    @DanBryant I see your point, and would think that this detail of constraining removal to only written agreement, would require an explicit statement to that effect. As it stands, having to guess at its purpose or intent only muddies the water, in my humble opinion. Thanks the comment, and feedback. Regards
    – user15669
    Commented Feb 22, 2018 at 17:29
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    @DanBryant I'm no lawyer, but often the intent of stuff like this is less to allow something and more to make it more obvious that other things aren't allowed. In other words, by saying you can amend or dissolve the contract by written agreement, it makes it clear that verbal agreements aren't intended to be a binding way to amend the contract; you have to get it in writing. Without this clause, one party could possibly claim "we had a verbal agreement and I thought that was sufficient".
    – anaximander
    Commented Feb 23, 2018 at 15:54

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