Establishes that the written NDA is the complete agreement, superseding all prior discussions and preventing reliance on oral promises.
✓ Low Risk
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Plain English Explanation
An entire agreement clause (also called an "integration clause" or "merger clause") states that the written NDA represents the complete understanding between the parties and supersedes all prior negotiations, discussions, and agreements about the same subject.
This clause serves several purposes:
Prevents "parol evidence": It stops parties from claiming that oral promises or earlier drafts modify the final agreement. What's written is what counts.
Creates certainty: Both parties can rely on the written document without worrying about undisclosed side agreements.
Clarifies scope: It identifies what documents are (and aren't) part of the agreement.
This is a standard "boilerplate" clause found in virtually all commercial agreements. It's generally low risk and rarely negotiated heavily, though the specific wording can have important implications.
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Why This Clause Matters
Oral Promises: During negotiations, people often make informal statements or promises. Without this clause, those could potentially be enforced as part of the deal.
Draft Versions: Negotiations typically involve multiple drafts with different terms. The clause confirms only the final signed version matters.
Multiple Documents: If the NDA is part of a larger transaction with multiple agreements, the clause helps define which documents govern confidentiality.
Fraud Exception: Despite this clause, parties can still bring claims for fraud or intentional misrepresentation. You can't contract away the right to sue for lies.
Modification Requirements: Often paired with requirements that any changes to the agreement must be in writing and signed by both parties.
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Risk Factors
Informal Commitments: If you received important oral assurances during negotiations that aren't in the written agreement, this clause may prevent you from enforcing them.
Prior Agreements: If there's an earlier NDA or other agreement between the parties, verify whether this new agreement supersedes or supplements it.
Related Documents: If exhibits, schedules, or other documents should be part of the agreement, make sure they're properly incorporated by reference.
Course of Dealing: This clause may affect whether past practices between the parties can be used to interpret ambiguous terms.
Amendment Procedures: Overly strict amendment requirements (like requiring board approval) can make routine modifications difficult.
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Clause Versions
Entire Agreement
This Agreement, including any exhibits and schedules attached hereto and incorporated by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, relating to such subject matter.
Each party acknowledges that it is not relying on any representations or warranties other than those expressly set forth in this Agreement.
Amendment and Waiver. This Agreement may not be amended, modified, or supplemented except by a written instrument signed by both parties. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. The failure of either party to enforce any right under this Agreement shall not be deemed a waiver of such right or of any other right.
Relationship to Other Agreements. This Agreement is intended to supplement and not to supersede any confidentiality obligations that either party may have under any other agreement between the parties. In the event of any conflict between this Agreement and any other agreement between the parties regarding the treatment of Confidential Information, the provisions providing greater protection for the Confidential Information shall control.
Note: This balanced version includes proper incorporation of exhibits, reasonable amendment procedures, clarifies relationship to other agreements, and specifies that the more protective terms control in case of conflict.
Entire Agreement
This Agreement constitutes the entire agreement between the parties regarding the protection of Confidential Information exchanged in connection with the Purpose, and supersedes all prior agreements, understandings, and representations, whether written or oral, on this subject.
Preservation of Other Rights. Notwithstanding the foregoing:
(a) This Agreement does not supersede any other agreements between the parties that may impose additional or more restrictive confidentiality obligations;
(b) Each party retains all rights and remedies it may have under trade secret law, intellectual property law, or other applicable law, regardless of this Agreement; and
(c) Each party retains the right to bring claims based on fraud, intentional misrepresentation, or willful misconduct.
Amendment. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of both parties. No waiver, consent, or modification shall be binding unless in writing and signed by the party to be bound.
No Implied Waivers. The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Any waiver of any provision shall be effective only if in writing and shall apply only to the specific instance and purpose for which it was given.
Informal Modifications. Notwithstanding the requirement for written amendments, the parties may agree by email exchange between authorized representatives to modify non-material terms such as notice addresses, designated contacts, or administrative procedures.
Why this favors you: Preserves rights under other agreements and applicable law, explicitly reserves fraud claims, allows informal modifications for administrative matters via email, and includes "no implied waiver" language.
Complete Integration and Non-Reliance
THIS AGREEMENT CONSTITUTES THE FINAL, COMPLETE, AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO ALL MATTERS RELATING TO THE SUBJECT MATTER HEREOF.
Each party expressly acknowledges and agrees that:
(a) This Agreement supersedes and replaces any and all prior agreements, representations, statements, negotiations, understandings, or communications of any kind, whether written, oral, express, or implied, relating to the subject matter hereof, including any prior non-disclosure, confidentiality, or similar agreements between the parties;
(b) Such party is not relying upon any representations, warranties, promises, or statements made by the other party or any of its representatives that are not expressly set forth in this Agreement, and has not been induced to enter into this Agreement by any such representation, warranty, promise, or statement;
(c) Such party has had the opportunity to seek independent legal advice regarding this Agreement and has either obtained such advice or voluntarily chosen not to do so;
(d) This Agreement may only be amended by a written instrument that: (i) expressly references this Agreement; (ii) is signed by authorized officers of both parties; (iii) is approved by each party's legal department; and (iv) expressly states the intent to amend this Agreement.
Any prior confidentiality or non-disclosure agreement between the parties is hereby terminated and of no further force or effect.
NO WAIVER OF ANY BREACH SHALL CONSTITUTE A WAIVER OF ANY OTHER BREACH, AND THE FAILURE TO ENFORCE ANY PROVISION SHALL NOT OPERATE AS A WAIVER OF SUCH PROVISION OR ANY OTHER PROVISION.
Warning - Eliminates other protections: Terminates all prior NDAs (could leave past disclosures unprotected), broad non-reliance waiver, complex amendment procedures requiring legal department and officer approval, and no flexibility for informal changes. Very rigid approach.
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Negotiation Tips
1
Preserve Prior NDAs: If you have an earlier NDA with the same party, make sure the new agreement supplements rather than replaces it, especially if the old NDA covered different information.
2
Incorporate Exhibits Properly: If there are exhibits, schedules, or attachments, ensure they're explicitly incorporated by reference in the entire agreement clause.
3
Keep Amendment Procedures Practical: Requiring board approval or multiple officer signatures for any amendment is burdensome. Allow reasonable modifications by authorized representatives.
4
Preserve Fraud Claims: Some aggressive clauses try to waive claims for pre-contractual misrepresentations. Ensure fraud and intentional misrepresentation claims are preserved.
5
Check What's Being Superseded: Before signing, verify you're comfortable with all prior agreements being replaced. Sometimes you want to keep earlier protections in place.
6
Document Important Promises: If you received important oral assurances during negotiations, get them in the written agreement before signing. After signing, they may not be enforceable.