Contracting for Forest Carbon : Elements of a Model ... - Forest Trends

a court of law, but is binding on the parties andthe court.MiscellaneousToward the end of a forest carbon emissionreductions purchase agreement come“boilerplate” clauses – clauses that vary littlebetween similar agreements – and clausesaddressing miscellaneous matters.Box 14. Sample Miscellaneous ClausesArticle 12. Miscellaneous.12.1 Confidential Information. The partiesshall treat the terms of this agreement and allinformation specifically identified asconfidential under or in connection with theagreement (collectively, “ConfidentialInformation”) as confidential and may neitherdisclose Confidential Information nor use itother than for bona fide purposes connectedwith this agreement without the prior writtenconsent of the other party, except that consent isnot required for disclosure:(a) To directors or employees of a partyand persons professionally engaged by a party,any financial institution that is offering or mayoffer finance related to the Project, any intendedassignee of the rights and interests of a partyunder this agreement, if the person to whomConfidential Information is disclosed is requiredby the disclosing party to treat the ConfidentialInformation as confidential in favor of the otherparty on terms substantially the same as thoseset out in this clause 12.1; or(b) To the extent legally required byapplicable law, or by a governmental entity,agency or regulatory authority havingjurisdiction over the disclosing party; or(c) To the extent that the ConfidentialInformation is in or lawfully comes into thepublic domain other than by breach of thisclause 12.1.12.2 Assignment. Neither party shall assign ortransfer its rights or obligations under thisagreement to a third party without the priorwritten consent of the other party to thisagreement, such consent not to be unreasonablywithheld.Assignment clauses, like bankruptcy clauses,tend to vary widely. In the forest carboncontext, there are many start-up companies thatexpect to be acquired by other companies. Thesebuyers will want a permissive assignment clauseso that they are able to transfer their contractualrights and obligations at acquisition.Box 15. Sample Miscellaneous Clauses12.3 Waiver. Failure by either party toenforce any provision of this agreement is not awaiver of that provision or of any future breachof that provision, and in no way affects thatparty’s right to require performance under thisagreement thereafter.12.4 United Nations Convention on Contractsfor the International Sale of Goods and Contracts(Rights of Third Parties) Act. The UnitedNations Convention on Contracts for theInternational Sale of Goods and Contracts(Rights of Third Parties) Act does not apply tothis agreement.The United Nations Convention on Contractsfor the International Sale of Goods andContracts (CISG) is a treaty containing uniforminternational sales law that has been ratified bymost major trading countries in the world(except, as of November 2010, Brazil, Africa,India, and the United Kingdom). It isequivalent to the Uniform Commercial CodeArticle 2 (Sales) in the United States. Parties to acontract may opt out of application of theCISG, but they must do so explicitly.Contracting for Forest Carbon | 18