Home > Provided
by Chris Lemens
The word “provided,” when used as a conjunction or in a phrase acting as a conjunction, is often ambiguous and is never plain English. For example:
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Vendor will indemnify Customer against any third party claims arising from allegations that, if proven, would constitute a breach of Vendor’s warranty, provided that Customer gives Vendor prompt notice of the claims. |
Is the provision of prompt notice:
(a) a condition to Vendor’s indemnify obligation, so that Customer’s late notice relieves Vendor of its indemnify obligation?
(b) an independent covenant, so that Customer’s late notice gives rise to a counterclaim by Vendor for any damages that prompt notice would have avoided and to, potentially, to a counterclaim of material breach permitting termination?
(c) both?
So, how do you avoid using the word "provided" ambiguously? Don't use it! Instead, substitute one of these phrases:
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if, so long as, only when |
if you are trying to express a condition |
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and the parties also agree that |
if you are trying to express a separate covenant |
I have also often seen the construction "provided, however, that" and "provided, further, that." Typically, these phrases can just be turned into "however" and "further" and there is no need for the "provided that" portion of the phrase.
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