Amendment Clause Email Templates

Thank you for your comments on the draft NDA. We have reviewed your proposed changes to Section [X], which governs amendments and modifications. We cannot accept language that would permit oral modifications or amendments by conduct. The current provision requiring all amendments to be in writing and signed by both parties is a critical protection that we include in all of our confidentiality agreements. Our concerns with oral modification are as follows: 1. Certainty - Written amendments create a clear record of what was agreed and when. Oral modifications invite disputes about what was said and whether the parties intended to modify the agreement. 2. Authority - A written amendment requirement helps ensure that modifications are approved by individuals with actual authority to bind the company. Informal oral statements by employees should not modify binding legal obligations. 3. Integration - The NDA represents the complete agreement of the parties on confidentiality matters. Allowing oral modifications undermines this integration and creates uncertainty about the operative terms. We must maintain our position that the Agreement may only be amended or modified by a written instrument signed by authorized representatives of both parties. If there are specific situations where you anticipate needing flexibility, please describe them and we can discuss whether there is an alternative approach that addresses your concerns. Best regards, [Name]

We have reviewed your proposed revision to Section [X], which would permit you to modify certain provisions of the Agreement upon [30] days notice to us. We cannot accept a unilateral amendment provision. An NDA is a bilateral contract that reflects a negotiated balance of rights and obligations between the parties. Allowing one party to modify terms unilaterally fundamentally undermines this structure. Our specific concerns include: 1. The provisions subject to unilateral modification include [identify provisions], which go to the core of our protections under this Agreement. 2. A notice-only mechanism provides us with no meaningful opportunity to object or negotiate before the modification takes effect. 3. We would have no practical remedy if you modified the Agreement in ways that harmed our interests, other than to terminate the Agreement entirely. We are willing to include a provision that facilitates amendments by simplifying the approval process, such as allowing amendments by email exchange rather than requiring wet-ink signatures. However, any amendment must require the affirmative consent of both parties. Please confirm that you can accept a mutual consent requirement for all amendments. Best regards, [Name]

As we finalize the NDA, I would like to confirm our understanding regarding course of dealing and its effect on the Agreement. Given the practical nature of how our teams will work together, there may be situations where we informally adjust processes or communications. We want to ensure that such practical accommodations do not inadvertently modify the Agreement or create implied waivers of our rights. To address this concern, we propose adding the following language to the amendment provision: "No course of dealing between the parties, and no delay or failure by either party to exercise any right hereunder, shall operate as a modification or waiver of any provision of this Agreement. The waiver by either party of a breach of any provision shall not operate or be construed as a waiver of any subsequent breach." This language is standard boilerplate that protects both parties. It ensures that our day-to-day working relationship does not create legal ambiguities about our respective rights and obligations. Please confirm this language is acceptable, and we can incorporate it into the final draft. Best regards, [Name]

Thank you for the revised draft. I have one additional comment regarding the amendment provision. The current language permits amendments signed by "an authorized representative" of each party. We would like to add specificity regarding who qualifies as an authorized representative for amendment purposes. Our concern is that amendments to confidentiality agreements can have significant consequences, and we want to ensure that any modifications are approved at an appropriate level within your organization. This protects both parties by ensuring that amendments reflect actual corporate intent, not just the view of an individual employee. We propose revising the amendment provision to read: "This Agreement may not be amended or modified except by a written instrument signed by (a) in the case of [Your Company], [title] or above, and (b) in the case of [Their Company], an officer, general counsel, or other individual specifically authorized by the Board of Directors to amend this Agreement." Alternatively, if you prefer, we can include a representation that the person signing any amendment has actual authority to bind the company to the modification. Please let us know which approach works better for your organization. Best regards, [Name]

Thank you for the draft NDA. We have reviewed Section [X], which requires amendments to be in writing and signed by both parties. While we agree that amendments should be documented in writing, we request that the provision be modified to allow amendments via email exchange, rather than requiring formal signed documents. Our proposal is to revise the amendment provision as follows: "This Agreement may be amended or modified by (a) a written instrument signed by authorized representatives of both parties, or (b) an exchange of emails between authorized representatives of both parties clearly expressing agreement to the amendment." This approach offers several benefits: 1. It maintains a clear written record of any amendments, preserving the certainty that both parties value. 2. It allows faster resolution of issues that may arise during the term, without requiring circulation of formal amendment documents. 3. Email exchanges are legally binding and provide equivalent evidence of agreement. 4. This approach is increasingly standard in commercial agreements, particularly for routine administrative matters. We want to emphasize that we are not proposing oral amendments. All changes would still require written documentation through email. We simply seek a more practical process. Please let us know if this modification is acceptable. Best regards, [Name]

We have reviewed the amendment provision in the draft NDA and would like to propose a tiered approach that provides appropriate rigor for substantive changes while allowing flexibility for administrative matters. Under our proposal: Tier 1 - Substantive Amendments: Any amendment to the core confidentiality obligations, term, survival period, or governing law would require a formal written amendment signed by authorized representatives of both parties. Tier 2 - Administrative Updates: Changes to notice addresses, designated contacts, or similar administrative provisions could be made by written notice from one party to the other, effective upon receipt. This approach recognizes that not all changes carry the same risk or importance. Requiring formal amendment documents for routine updates such as address changes creates unnecessary friction and often leads to outdated information remaining in the agreement. The distinction also aligns with how the Agreement will function in practice. Substantive changes warrant careful consideration by both parties. Administrative updates simply reflect operational reality. We are confident this tiered approach protects both parties' interests while allowing practical flexibility. Please let us know your thoughts. Best regards, [Name]

Thank you for your response regarding the amendment provision. We understand and respect your position that amendments should be in writing. However, we want to raise a practical concern. During the course of our work together, our teams will inevitably make practical agreements about how to handle specific situations. For example: - An agreement to share certain information via a particular secure platform rather than the method specified in the NDA; - An understanding that certain categories of information may be shared with specific individuals not originally contemplated; or - Practical arrangements for how and when information will be returned or destroyed. These types of operational agreements happen in the normal course of business. We are concerned that if we later have a dispute, one party might argue that such practical agreements are unenforceable because they were not formally documented as written amendments. To address this, we propose adding a provision that explicitly acknowledges that practical operational agreements reached in good faith by authorized personnel shall be binding on the parties, even if not documented in a formal amendment. Alternatively, we could commit to documenting any such agreements via email exchange, which would satisfy a written requirement while remaining practical. Please let us know your preferred approach. Best regards, [Name]

We have reviewed Section [X] of the draft NDA, which addresses amendments and modifications. The current language states that amendments require the consent of both parties, but adds that such consent shall not be "unreasonably withheld or delayed" by the Receiving Party. This creates an asymmetry where we might be compelled to accept amendments we do not agree with, while you retain absolute discretion. We request that this language be modified to provide for equal treatment: Option A: Remove the "not unreasonably withheld" language entirely, so that both parties have equal discretion to accept or reject proposed amendments. Option B: Apply the "not unreasonably withheld or delayed" standard equally to both parties. Either approach ensures that the amendment process is balanced. We do not believe it is appropriate for one party to have effectively unconstrained control over amendments while the other is subject to a reasonableness standard. Additionally, we would like the provision to clarify that silence in response to a proposed amendment does not constitute consent. This prevents situations where a party might argue that our failure to respond within a particular timeframe waived our right to object. Please confirm these modifications are acceptable. Best regards, [Name]