Entire Agreement Clause Emails

Dear [Name], We have reviewed the entire agreement clause in Section [X] and need to propose a modification. As you may recall, our companies are parties to an existing Non-Disclosure Agreement dated [Date] (the "Prior NDA") that covers [describe subject matter, e.g., "discussions related to the XYZ Project"]. The entire agreement clause as currently drafted would supersede that Prior NDA, which is not our intent. The Prior NDA should remain in effect because: - It covers different subject matter than this new NDA - It contains terms specifically negotiated for that particular transaction/relationship - Information has already been exchanged under the Prior NDA with the expectation that those protections continue We propose the following revision to the entire agreement clause: "This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral, relating to such subject matter; provided, however, that this Agreement shall not supersede or modify that certain Non-Disclosure Agreement between the parties dated [Date] (the 'Prior NDA'), which shall remain in full force and effect according to its terms." This carve-out ensures both agreements can coexist without conflict. Please confirm you can incorporate this change. Best regards, [Your Name]

Dear [Name], Before we finalize the NDA, I need to flag an issue with the entire agreement clause in Section [X]. Our companies have several existing agreements that include confidentiality obligations: 1. Master Services Agreement dated [Date] 2. Joint Development Agreement dated [Date] 3. Previous NDA dated [Date] covering [subject matter] 4. [Any other relevant agreements] The current entire agreement clause would supersede all of these, eliminating confidentiality protections we negotiated specifically for those contexts. This is likely not the intended outcome for either party. We propose replacing the current entire agreement clause with: "This Agreement constitutes the entire agreement between the parties with respect to the protection of Confidential Information disclosed in connection with [describe the specific purpose of this NDA]. This Agreement shall not supersede, modify, or affect any other agreement between the parties, including but not limited to [list key agreements]. To the extent any conflict exists between the confidentiality provisions of this Agreement and any other agreement between the parties, the provisions providing greater protection to the disclosing party's confidential information shall control." Alternatively, we could add a schedule listing all preserved agreements: "This Agreement shall not supersede or modify any agreement listed on Schedule A, each of which shall remain in full force and effect according to its terms." Please let me know which approach you prefer. Best regards, [Your Name]

Dear [Name], Thank you for your proposed revision to the entire agreement clause. We understand your concern about preserving existing agreements, but we have concerns about the breadth of the proposed carve-out. Your proposed language preserves "all prior agreements and understandings between the parties" without specification. This creates significant uncertainty: 1. We cannot assess what obligations we may be assuming or preserving 2. Oral "understandings" are particularly problematic as they are undefined and unverifiable 3. We may inadvertently be preserving conflicting terms from forgotten agreements We are willing to accommodate specific, identified prior agreements. Please provide: 1. A complete list of prior agreements you believe should be carved out 2. For each agreement, confirmation that it remains in effect and has not been terminated 3. A brief description of why each agreement should survive alongside this NDA Once we have this information, we can evaluate each carve-out individually. Our proposed approach: "This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, and representations, whether written or oral, relating to such subject matter, except for the following specifically identified agreements which shall remain in full force and effect: [to be listed after review]." This provides the certainty both parties need while accommodating legitimate concerns about existing agreements. Best regards, [Your Name]

Dear [Name], As we finalize this NDA, I want to ensure proper coordination with our existing [Service/License/Partnership] Agreement dated [Date] (the "Service Agreement"). The Service Agreement contains its own confidentiality provisions in Section [X] that specifically address information exchanged in connection with [describe the services/products]. Those provisions were negotiated as part of a broader commercial deal and reflect a carefully balanced set of rights and obligations. This new NDA is being executed for a different purpose - to cover [describe purpose of new NDA, e.g., "potential acquisition discussions"]. We should not inadvertently supersede the Service Agreement confidentiality terms. We propose adding the following clarification: "This Agreement covers only Confidential Information disclosed in connection with [Purpose]. Confidential information disclosed pursuant to the [Service/License/Partnership] Agreement between the parties dated [Date] shall continue to be governed by the confidentiality provisions of that agreement, and such information shall not be deemed 'Confidential Information' under this Agreement. In the event of any conflict between this Agreement and the confidentiality provisions of the [Service Agreement], the [Service Agreement] shall control with respect to information disclosed thereunder." This ensures each agreement governs its intended scope without overlap or conflict. Please confirm this approach is acceptable. Best regards, [Your Name]

Dear [Name], I understand your concern about preserving the Prior NDA dated [Date], but we intentionally want this new NDA to supersede and replace that agreement entirely. Our reasons: 1. Updated Terms: The Prior NDA was executed [X years] ago and does not reflect current best practices for confidentiality protection. This new NDA contains updated provisions including [specific improvements, e.g., stronger remedies, clearer definitions, updated compliance terms]. 2. Unified Treatment: Having two parallel NDAs covering potentially overlapping subject matter creates confusion about which terms apply to which information. A single, comprehensive agreement is cleaner. 3. Term Alignment: The Prior NDA may expire at a different time or have different survival periods. Consolidating into one agreement simplifies administration. 4. Scope Coverage: This new NDA is designed to cover all confidential information we may share, including the subject matter previously covered by the Prior NDA. To address your concerns, we are willing to: (a) Confirm in writing that all information previously disclosed under the Prior NDA will be treated as Confidential Information under this new NDA; (b) Ensure the new NDA provides protections at least as strong as the Prior NDA; and (c) Add language confirming that the survival period for previously disclosed information runs from the original disclosure date. With these assurances, can we proceed with the entire agreement clause as drafted? Best regards, [Your Name]

Dear [Name], Before we execute the NDA, I want to ensure our prior discussions are properly memorialized, given the entire agreement clause. During our [call/meeting] on [Date], we agreed that [describe the verbal understanding, e.g., "your company's general industry knowledge and publicly available competitive intelligence would not be treated as Confidential Information even if it happens to overlap with information you formally disclose"]. This understanding is important to us and was a basis for our willingness to enter into this agreement. The current entire agreement clause would supersede this understanding, which concerns me. I see two options: Option A - Add a Side Letter: We execute a contemporaneous side letter memorializing our understanding: "The parties acknowledge and agree that [description of understanding]. This understanding shall survive execution of the NDA and shall not be superseded by the entire agreement clause thereof." Option B - Amend the NDA: We add the understanding directly to the NDA: "Notwithstanding any provision of this Agreement to the contrary, the parties acknowledge and agree that [description of understanding]." Either approach works for us. What matters is that we document this understanding in writing before the entire agreement clause takes effect. Please confirm which approach you prefer, or let me know if you recall our discussion differently. Best regards, [Your Name]

Dear [Name], Thank you for raising this issue before we execute the NDA. I appreciate your diligence in ensuring we are aligned. However, I have concerns about the side letter approach for memorializing our discussion: 1. Certainty: The entire agreement clause exists precisely to ensure the written document is the complete agreement. Adding side letters erodes this certainty and creates interpretive issues. 2. Precedent: If we establish a practice of using side letters, future discussions may also need memorializing, making the entire agreement clause meaningless. 3. Discoverability: Side letters sometimes get separated from the main agreement, creating confusion if the agreement is ever reviewed or litigated. If there are specific understandings that are truly important to the transaction, they should be incorporated into the NDA itself. I suggest we: 1. Discuss the specific understanding you want to memorialize 2. If it is appropriate and we agree, we add it directly to the NDA as a formal provision 3. The entire agreement clause then accurately states that the written document contains our complete agreement If the understanding you have in mind is something we agreed to and can commit to, let us put it in the NDA where it belongs. If it is something we did not agree to or cannot commit to in writing, we should address that disconnect now rather than through a side letter. Can we schedule a call to discuss the specific point you want to address? Best regards, [Your Name]

Dear [Name], I have a drafting point regarding the entire agreement and amendment provisions. The current entire agreement clause (Section [X]) does not address how this Agreement may be modified in the future. Combined with language stating this is the "complete agreement," this creates uncertainty about whether informal modifications (e.g., email confirmations) might be effective. To provide clarity for both parties, we propose adding an amendment provision: "Amendment. This Agreement may not be amended, modified, or supplemented except by a written instrument signed by authorized representatives of both parties that specifically references this Agreement and states that it is intended to amend, modify, or supplement this Agreement. No course of dealing, course of performance, or trade usage shall be deemed to amend, modify, or supplement this Agreement." This language: - Requires formal written amendments - Prevents informal emails or conduct from inadvertently modifying the agreement - Provides certainty about what constitutes the complete agreement at any point in time - Protects both parties from claims that informal communications created binding modifications If this provision is not already in your standard form, we request its addition. It is a common commercial practice that benefits both parties. Best regards, [Your Name]