51 Amendment in writing
Samantha Teremi
Essentials of the law:
The purpose of this clause is to specify how changes can be made to the agreed upon terms and conditions. The parties can still amend a contract regardless of whether an “amendment in writing” clause is included in the contract or not, as this clause does not establish the right to amend, but rather outlines the procedure for doing so.
Typically, parties will use a written amendment, as opposed to a verbal agreement or email communication, to formally document the addition of a new clause or alteration of the original terms. For example, if a new ebook is being added to a library’s collection, but the title was not included in the original contract’s list of Licensed Materials, then an amendment can be constructed to include the new title under the governing set of terms. An amendment can also be used to substantively alter a provision of the original contract, such changing compliance requirements from WCAG level 2.0 to 2.1.
Specifying that an amendment can only be made in writing ensures that (1) both parties are aware of and consent to the changes, and (2) that there is no miscommunication over the changes being legally binding.
Desired language:
“No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Licensor and Licensee.”[1]
Tricks and traps:
It’s best to make sure the amendment clause requires an authorized signatory from each party to formally execute the new amendment, so that best institutional and license management practices are followed.
Additionally, watch out for clauses that suggest that Licensor may make changes to the terms at any given time and at their own discretion, with or without notice to Licensee. These clauses should be stricken, if possible, as unilateral amendments do not allow Licensee any say in terms that affect their use of the Licensed Materials. If Licensor will not agree to an “amendment in writing” clause in place of their unilateral clause, it would be better to remain silent on this front. Silence would not forbid the parties from making amendments, but would ensure that Licensor is not contractually given unrestricted freedom to alter the terms.
Importance and risk:
“Amendment in writing” language is important to include in a contract, because it ensures that the publisher cannot change the terms of the agreement without the Licensee’s consent or knowledge. Both parties will have to mutually agree to the new changes and formally execute a written document in order to make them part of the existing agreement. It also ensures that any oral amendments or “informal communications” are not considered legally enforceable. [2]
