Long form sample clause
1. Notices
[Caution – Notices by email:
NB: The Electronic Transactions Act will apply if provisions relating to electronic notices / communications are deleted from this clause. In addition to this, clients should be warned, from an evidentiary perspective, about the risks associated with email delivery of notices generally and whether they wish to expressly prohibit this form of notice delivery under the contract.
NB: If you do decide to include email as an option in clause 1.1(a) below, please ensure that you also include clauses 1.1(b)(iii), 1.1(c)(iv), 1.2 (Notices sent by email) and consider whether any important notices should be expressly specified and excluded from this mode of delivery under clause 1.3 (Certain Notices not to be sent by email).]
1.1 General
(a) Unless expressly stated otherwise in this [deed/agreement] [and subject to clause 1.2 (Notices sent by email)], a notice, consent or other communication given under this [deed/agreement] including, but not limited to, a request, certificate, demand, consent, waiver or approval, to or by a party to this [deed/agreement] (Notice):
(i) must be in legible writing and in English [(or accompanied by a certified translation into English)];
(ii) must be addressed to the party to whom it is to be given (Addressee) at the address [[,/or] facsimile number] [or email address] set out below or to any other address [[,/or] facsimile number] [or email address] as notified by the Addressee for the purposes of this clause:
(A) If to [Party A]:
Address:
Attention:
Position:
[Facsimile:]
[Email:]
(B) If to [Party B]:
Address:
Attention:
Position:
[Facsimile:]
[Email:]
(iii) must be signed by or on behalf of the sender (if an individual) or an Officer of the sender;
(iv) must be either:
(A) delivered by hand or sent by pre-paid mail (by airmail if sent to or from a place outside of Australia) to the Addressee; [and/or]
(B) [sent by facsimile, to the Addressee’s facsimile number]; [and/or]];
(C) [sent by email to the Addressee’s email address; and]
(v) is deemed to be received by the Addressee in accordance with clause 1.1(c).
(b) If:
(i) a party changes its address and fails to notify the other part[y/ies] of this change and the new address, delivery of Notices marked to the attention of the Addressee at that new address is deemed compliant with the notice obligations under this clause; [and/or]
(ii) an individual named in clause 1.1(a)(ii) ceases to work in the role specified or ceases to work for the Addressee and the Addressee fails to notify the other part[y/ies] of an alternative individual, delivery of Notices marked to the attention of an individual in the same or equivalent role at the Addressee is deemed compliant with the notice obligations under this clause[./; and/or
(iii) an individual associated with an email address listed in clause 1.1(a)(ii) ceases to work in the role specified or ceases to work for the Addressee and the Addressee fails to notify the other part[y/ies] of an alternative email address, Notices sent by email to a manager or equivalent level personnel at the Addressee are deemed compliant with the notice obligations under this clause.]
(c) Without limiting any other means by which the sender may be able to prove that a Notice has been received by the Addressee, a Notice is deemed to be received:
(i) if delivered by hand, when delivered to the Addressee;
(ii) if sent by post, on the [6th/[insert]] Business Day after the date of posting, or if to or from a place outside Australia, on the [10th/[insert]] Business Day after the date of posting; [or]
[if sent by facsimile transmission, on receipt by the sender of an acknowledgement or transmission report generated by the machine from which the facsimile was sent; [or]
[Option 1 – email delivery
NB: Generally under the Electronic Transactions Act:
- if an email address (or facsimile number) is specified in a contract (but unaccompanied by delivery / receipt parameters), communications sent using those methods will be deemed received when the message enters the recipient’s mail server; or
- if no email address (or facsimile number) is specified in the contract, communications sent using those methods will be deemed received at the time when the recipient becomes aware of the message.
For evidentiary purposes, this clause establishes a clearer mechanism for determining deemed receipt of electronic notices. Clients who wish to rely on email delivery of notices must have an awareness of their server capabilities and decide on the appropriate deemed timing for their receipt or whether automated messages confirming email delivery / read receipts are enabled and agreed to be relied upon. Please discuss this clause with your client, particularly if email delivery of important notices has not been expressly prohibited under clause 1.3 (Certain Notices not to be sent by email).
(iii) [if sent by email:
(A) when the sender receives an automated message confirming delivery; or
(B) [30 minutes/[insert time period]] after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first.]
End of option – email delivery]
but if the delivery or receipt is on a day which is not a Business Day or is after 5.00 pm (Addressee’s time) it is deemed to be received at 9.00 am on the following Business Day.
(d) [A facsimile transmission is deemed to be legible unless the Addressee telephones the sender within 2 hours after the transmission is received or regarded as received under clause 1.1(c) and informs the sender that it is not legible.]
[Option – Notices sent by email
1.2 Notices sent by email
Notices sent by email need not be marked for attention in the way stated in clause 1.1 (General). However, the email:
(a) must state the first and last name of the sender; and
(b) must be [insert any other form requirements].
Notices sent by email are taken to be signed by the named sender.
End of Option – Notices sent by email]
[Option – certain Notices not to be sent by email
NB: For evidentiary reasons, you may wish to expressly prohibit the delivery of all Notices (or all important Notices) by email. For example, a notice terminating this agreement by email. Please seek specific instructions from your client.
1.3 Certain Notices not to be sent by email
Despite clauses 1.1 (General) and 1.2 (Notices sent by email), the following Notices must not be sent by email:
(a) [insert any Notice to be excluded].
[End option – Certain Notices not to be sent by email.]
Short form sample clause
Information / alert – Notices by email
For evidentiary reasons, please use the long form Notices clause if your client seeks to rely on email delivery of notices under the contract.
1.1 Notices
(a) A notice, consent or other communication under this [deed/agreement] is only effective if it is in writing, signed by or on behalf of the party giving it and it is received in full and legible form at the addressee’s address [or facsimile number]. It is regarded as received [at the time and] on the day it is actually received, but if it is received on a day that is not a Business Day or after 5.00 pm on a Business Day it is regarded as received [at 9.00 am] on the following Business Day.
(b) For the purposes of this clause, a party’s address [and facsimile number are those/is] set out below, unless the party has notified a changed address [or facsimile number] in which case the notice, consent, approval or other communication must be to that address [or number]:
insert party’s name]
Address:
[Facsimile:]
Attention:
Position:
insert party’s name]
Address:
[Facsimile:]
Attention:
Position:
(c) If a party changes address and fails to notify the other part[y/ies] of this change and the new address, delivery of notices to that party at that new address is deemed compliant with the notice obligations under this clause.
(d) If an individual named in clause 1.1(b) ceases to work in the role specified or ceases to work for a party and that party fails to notify the other part[y/ies] of an alternative individual, delivery of notices marked to the attention of an individual in the same or equivalent role at that party is deemed compliant with the notice obligations under this clause.
Commentary
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