Q: Is this contract and termination fee enforceable if the contract is missing items specifically called out?
If a termination section of a contract states that, "In the event of termination of this Agreement, Sections 9, 11, 12, and 14 shall survive such termination," but no such sections are in the contract, is it enforceable? The termination requires a termination fee, but I am afraid to pay/terminate until I know what will survive the termination. I was also never provided these sections, so I feel like I signed an incomplete contract. But if these sections don't exist, and were never removed from the contract language, is the contract still enforceable? Moreover, if they do exist, but were never provided, is this contract enforceable?
A: The key principle that a court will use to interpret a contract is: what was the intent of the parties? The fact that the Agreement specifically mentions these Sections by number strongly indicates an intent that such Sections form a part of the contract agreed to by the parties. It is likely that whatever copy you may have is incomplete. Whether these Sections were "provided" or not probably does not affect their enforceability because the termination section in the part you have specifically mentions them. You should contact the other party to see if they can provide to you the sections missing from the version of the contract you currently have. It is highly likely that these sections pertain to dispute resolution, choice of law, arbitration, forum selection, confidentiality, non-disclosure, non-compete, non-circumvention, or other matters that commonly survive the termination of a contract.
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