Definitive Agreement: Integration

NDA

Definitive Agreement: Integration

Like many contracts, NDAs have integration clauses (aka merger clauses or entire agreement clauses) that confirm that the terms of the NDA constitute the complete and final agreement between the parties regarding the subject matter of the NDA. The effect of an integration clause is to supersede any previous agreements (either written or oral) between the parties which may conflict with the NDA.

Because an NDA is commonly viewed as a “preliminary” agreement that is signed early in the transaction development process—a process which may include other “side” documents as well as ending with a final definitive agreement—the parties may wish to address the relationship of the NDA and its operative effect vis-à-vis such other transactional documents.

Rejection of New Confidentiality Terms

In the following exemplars, the parties reject any purported amendment or override of the NDA by the execution of any side agreements:

Exemplar N7A-1

The terms of this Agreement shall control over any additional confidentiality requirements imposed by an offering memorandum, web-based database, or similar repository of Confidential Information to which the Receiving Party may be granted access in connection with this Agreement, notwithstanding acceptance of such an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon, or other indication of assent to such additional confidentiality conditions. The Receiving Party’s confidentiality obligations with respect to the Confidential Information are exclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in traditional written format.

Exemplar N7A-2

This NDA contains the entire agreement between the Parties hereto concerning the confidentiality of each Party’s Confidential Information and the other matters provided for herein, and no modifications of this NDA or waiver of the terms and conditions hereof will be binding, unless approved in writing by each of the Parties hereto. In the event of any conflict between the terms of this NDA and the terms of any user, click-through, or other similar agreement with respect to any electronic, online, or web-based data room established in connection with the Proposed Transaction, the terms of this NDA shall prevail.

Preservation of the NDA

The following exemplars preserve the terms of the NDA notwithstanding the parties’ entry into a later agreement:

Exemplar N7A-3

This agreement is the entire understanding between the parties with respect to the subject matter of this agreement and supersedes all previous agreements and understandings, whether written or oral, between the parties with respect to the subject matter of this agreement. If the parties have entered into or in the future enter into confidentiality agreements unrelated to the Proposed Arrangement, the terms of this agreement control with regards to Confidential Information unless such other confidentiality agreement expressly states that it supersedes this agreement.

Exemplar N7A-4

Unless this Agreement is expressly superseded by specific reference, this Agreement applies to all exchanges of Confidential Information between the Parties and their Affiliates from and after the Effective Date notwithstanding anything to the contrary included in a Definitive Agreement or any other contemporaneous or subsequent agreement between the Parties or their Affiliates, such as a generic confidentiality provision or a provision purporting to integrate or supersede all prior agreements between the Parties or their Affiliates.

Incorporation by Reference

By contrast, the following exemplars would be found in a later definitive agreement that references and incorporates the terms of any prior or separate NDA:

Exemplar N7A-5

The Contract, which may have a Non-disclosure Agreement incorporated by reference, represents the entire agreement between Company and Supplier. It supersedes all prior communications and agreements, whether oral or written, relating to the Contract’s subject matter.

Exemplar N7A-6

To the extent a Nondisclosure Agreement (“NDA”) is signed and in effect between the parties, such NDA hereunder will govern the exchange of information between the parties under this Agreement. All confidential and proprietary information will be labeled as such. For purposes of this Agreement, “Confidential Information” shall have the meaning assigned to it in the NDA. If no NDA is in effect, the applicable terms of this Section shall govern the exchange of information between the parties under this Agreement.

Exemplar N7A-7

This CONTRACT sets forth the entire agreement between the parties concerning its subject matter and supersedes any other agreements or statements pertaining to the same subject matter, except those agreements or statements expressly referenced in this CONTRACT as included. Any confidentiality agreement pertaining to the subject matter will remain in effect according to its terms, unless this CONTRACT provides that it is terminated or replaced.

Exemplar N7A-8

This Agreement constitutes the entire Agreement between the Parties and supersedes all other agreements or arrangements between the Parties in relation to the subject matter of this Agreement. However the obligations of the Parties under any pre-existing non-disclosure agreement shall remain in full force and effect insofar as there is no conflict between the same and this Agreement.

Govern Until Superseded

In the following exemplars, the parties expressly contemplate that the NDA may be eventually superseded by a later definitive agreement regarding the parties’ contemplated transaction and agree that the NDA will govern unless specifically superseded:

Exemplar N7A-9

This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning the Purpose, then this Agreement shall not supersede either party's rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise.

Exemplar N7A-10

This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product or software license provisions and rights, then this Agreement shall not supersede either party's rights and obligations as provided in such other agreements, unless such other agreement specifically provides otherwise.

Exemplar N7A-11

This NDA is solely for the purpose of governing the mutual disclosure(s) as defined herein between the Parties in the context of contemplated investigation of the feasibility of the Project. If the Parties enter into an agreement concerning a business relationship of the type contemplated herein, such relationship will be governed by a separate agreement, and the provisions of such agreement concerning confidentiality of information shall supersede and prevail over any conflicting provisions of this NDA.

CC

Definitive Agreement: Integration

NDA

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