Establishes that the written NDA is the complete agreement between the parties, superseding all prior discussions, negotiations, and 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 and final understanding between the parties. It supersedes all prior negotiations, discussions, and agreements about the same subject matter.
This clause serves several important purposes:
Parol Evidence Rule: It prevents parties from introducing evidence of oral promises or earlier drafts to contradict or supplement the written agreement. What's written is what counts.
Certainty: Both parties can rely on the written document without worrying about undisclosed side agreements or informal understandings.
Scope Definition: It clarifies exactly what documents constitute "the agreement" and what is excluded.
Supersession: It confirms whether prior NDAs or confidentiality obligations are replaced or supplemented.
While often treated as standard boilerplate, the specific wording can have significant implications for prior agreements and amendment procedures.
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Why This Clause Matters
Oral Promises: During negotiations, salespeople or executives may make informal promises ("Don't worry, we'll be flexible on that"). Without this clause, those statements might be enforceable. With it, only the written terms count.
Prior Agreements: If you have an existing NDA with the same party, the entire agreement clause determines whether it's replaced or supplemented. This is critical - you don't want gaps in protection.
Draft Versions: Negotiations typically involve multiple drafts with different terms. The clause confirms only the final signed version matters, not earlier versions that might have had more favorable terms.
Fraud Exception: Despite this clause, parties can still bring claims for fraud or intentional misrepresentation. You cannot contract away the right to sue for lies.
Amendment Requirements: Often paired with requirements that modifications must be in writing and signed by both parties.
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Risk Factors
Lost Prior Protections: If an earlier NDA contained valuable provisions (like longer survival periods or broader definitions), a blanket supersession clause eliminates them.
Unwritten Commitments: If you received important oral assurances during negotiations that aren't in the final written agreement, this clause prevents you from enforcing them.
Exhibits and Attachments: If supporting documents aren't properly incorporated by reference, they may not be part of the agreement.
Onerous Amendment Requirements: Some clauses require multiple officer signatures or legal department approval for any changes, making routine modifications difficult.
Non-Reliance Waivers: Aggressive versions include waivers of reliance on representations, potentially limiting fraud claims.
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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. Nothing in this section shall limit liability for fraud or intentional misrepresentation.
Amendment and Waiver
This Agreement may not be amended, modified, or supplemented except by a written instrument signed by authorized representatives of 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 Prior Agreements
This Agreement is intended to supplement, and not to supersede, any prior confidentiality or non-disclosure agreements between the parties, unless expressly stated otherwise in writing signed by both parties. In the event of any conflict between this Agreement and any prior agreement regarding the treatment of Confidential Information, the provisions providing greater protection for the Confidential Information shall control.
Note: This balanced version incorporates exhibits properly, preserves fraud claims, includes reasonable amendment procedures, and importantly supplements rather than replaces prior NDAs (with the more protective terms controlling).
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 Rights
Notwithstanding the foregoing:
(a) This Agreement does not supersede, modify, or limit any confidentiality obligations that may exist under any other agreement between the parties, including any master services agreement, license agreement, or prior non-disclosure agreement, all of which shall remain in full force and effect;
(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;
(c) Each party reserves the right to bring claims based on fraud, intentional misrepresentation, or willful misconduct, which claims are not limited by this integration clause; and
(d) Nothing herein shall be construed to waive or limit any rights that cannot be waived as a matter of law.
Amendment
This Agreement may be amended or modified only by a written instrument signed by authorized representatives of both parties. Email exchanges between authorized representatives regarding administrative matters (such as notice addresses or designated contacts) shall be deemed written amendments.
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.
Why this favors you: Explicitly preserves all rights under prior agreements, retains statutory rights under trade secret and IP law, strongly preserves fraud claims, allows informal email amendments for administrative matters, and includes robust no-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 without limitation any prior non-disclosure, confidentiality, or similar agreements between the parties, all of which are hereby terminated;
(b) Such party has not relied upon any representations, warranties, promises, inducements, 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, inducement, 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) Such party waives any claim or defense based on representations or statements not expressly contained in this Agreement;
(e) This Agreement may only be amended by a written instrument that: (i) expressly references this Agreement by title and date; (ii) is signed by authorized officers (not merely authorized representatives) of both parties; (iii) is approved in writing by each party's legal department; and (iv) expressly states the intent to amend this Agreement.
NO COURSE OF DEALING, TRADE USAGE, OR COURSE OF PERFORMANCE SHALL BE USED TO MODIFY, INTERPRET, SUPPLEMENT, OR EXPLAIN ANY TERM OF THIS AGREEMENT.
Warning - Eliminates protections: Terminates ALL prior NDAs (potentially leaving past disclosures unprotected), includes broad non-reliance waiver that may limit fraud claims, onerous amendment procedures requiring officer signatures and legal approval, and prohibits use of course of dealing to interpret ambiguous terms.
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Negotiation Tips
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Preserve Prior NDAs: If you have an earlier NDA with the same party, ensure the new agreement supplements rather than replaces it. Past disclosures should remain protected under the original terms.
2
Check Exhibit Incorporation: Verify that all exhibits, schedules, and attachments are explicitly incorporated by reference. Documents not properly incorporated may not be part of the agreement.
3
Keep Amendment Procedures Practical: Requiring board approval or multiple officer signatures for any modification is burdensome. Authorized representatives should be sufficient for most changes.
4
Preserve Fraud Claims: Resist broad non-reliance waivers that could limit your ability to bring claims for intentional misrepresentation. An express carve-out for fraud is essential.
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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.
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Consider "More Protective Controls": Add language providing that in conflicts between this and prior agreements, the more protective provisions govern. This ensures you don't lose important protections.