Overview
Entire agreement clauses (also called integration or merger clauses) are often treated as boilerplate, but they have real consequences. They determine whether prior NDAs remain in effect, whether oral promises can be enforced, and how difficult it is to modify the agreement later.
This guide covers negotiation strategies for entire agreement clauses, with a particular focus on preserving prior agreements, protecting against non-reliance waivers, and ensuring practical amendment procedures.
Common Trap
Many parties sign NDAs without realizing the entire agreement clause terminates their existing NDA with the same counterparty. If you've previously shared confidential information under an earlier agreement, verify whether that protection continues under the new NDA.
Key Issues to Negotiate
1. Prior Agreement Treatment
The most important issue is whether the new NDA replaces or supplements prior confidentiality agreements:
"This Agreement supersedes and replaces any and all prior agreements... including any prior non-disclosure, confidentiality, or similar agreements between the parties, all of which are hereby terminated."
"This Agreement is intended to supplement, and not to supersede, any prior confidentiality agreements between the parties. In the event of conflict, the more protective provisions shall control."
Why it matters: If you shared trade secrets under a 2020 NDA with 5-year survival, and sign a new 2024 NDA with 3-year survival that "supersedes all prior agreements," the 2020 disclosures may now have only 3-year protection instead of protection through 2025.
2. Non-Reliance Waivers
Aggressive entire agreement clauses include waivers of reliance on representations not in the written agreement:
"Each party acknowledges that it has not relied upon any representations, warranties, or statements not expressly set forth herein, and waives any claim based on such representations."
These waivers can potentially limit fraud claims, though courts are split on their enforceability. The safest approach is to include an express carve-out:
"Nothing in this section shall limit liability for fraud, intentional misrepresentation, or willful misconduct."
3. Amendment Procedures
Onerous amendment requirements can make routine modifications impractical:
"This Agreement may only be amended by a written instrument signed by authorized officers of both parties and approved by each party's legal department."
"This Agreement may be amended by written instrument signed by authorized representatives of both parties. Email exchanges regarding administrative matters shall be deemed written amendments."
Core Negotiation Strategies
Before negotiating, identify all existing agreements with this counterparty that involve confidentiality:
- Previous NDAs (check both party-specific and standard forms)
- Master services agreements with confidentiality provisions
- License agreements with confidentiality terms
- Partnership or joint venture agreements
- Any agreement with confidentiality, non-disclosure, or proprietary information sections
Determine which protections you want to preserve and negotiate accordingly.
Instead of letting the new NDA replace everything, propose that it supplements prior agreements:
- Prior NDAs remain in effect for information disclosed under them
- New NDA governs new disclosures going forward
- If terms conflict, the more protective provisions control
- Either party can identify specific prior agreements that should be terminated
Sample language: "This Agreement supplements all prior confidentiality agreements between the parties, which shall remain in full force and effect. In the event of any conflict, the provisions providing greater protection for Confidential Information shall govern."
If the clause includes a non-reliance waiver, negotiate these protections:
- Express fraud carve-out: "Nothing herein limits claims for fraud or intentional misrepresentation"
- Limit scope: Non-reliance should only apply to the subject matter of the NDA, not all representations
- Preserve statutory rights: "Each party retains all rights under trade secret law and other applicable statutes"
- If they insist on broad waiver: At minimum, ensure all material representations ARE in the written agreement
Negotiate for practical amendment procedures:
- "Authorized representatives" should be sufficient, not "officers"
- Legal department approval should not be required for every change
- Email amendments should be valid for administrative matters (contact changes, address updates)
- Material changes (term, scope, obligations) can require more formality
Common Pushback and Responses
🔴 "We need to supersede prior NDAs to avoid confusion"
Your Response:
"I understand the concern about overlapping agreements. However, we've shared significant confidential information under our prior NDA that we need to remain protected. Can we specify that the new NDA governs future disclosures while the prior NDA continues to protect past disclosures? This avoids gaps in protection while providing clarity going forward."
🔴 "Our standard form requires the non-reliance waiver"
Your Response:
"We understand you have standard terms, but broad non-reliance waivers raise concerns about fraud protection. We're comfortable with language stating we're not relying on representations not in the agreement, but we need to preserve claims for intentional misrepresentation. Can we add: 'Nothing herein limits liability for fraud or intentional misconduct'? This is standard practice."
🔴 "We require officer signatures for any amendments"
Your Response:
"Requiring officer signatures for every amendment would make routine updates impractical. If someone's notice address changes, we shouldn't need to involve executives. Can we tier this: administrative changes (contacts, addresses) can be made by authorized representatives via email, while material changes (term, scope, obligations) require signed written amendments?"
🔴 "We don't want to be bound by terms from old agreements"
Your Response:
"Then let's identify specifically which prior terms are problematic. We can add language stating the new NDA supersedes [specific agreement] but not others. Or we can specify that the new NDA's terms control for any conflicting provisions. What we can't do is leave information we've already shared without protection."
Email Templates
Requesting Preservation of Prior NDAs
Use when the draft supersedes existing agreements
Hi [Name],
Thank you for the draft NDA. I have one concern regarding Section [X], the entire agreement clause.
As currently drafted, this clause would supersede our existing NDA dated [Date]. We've shared confidential information under that agreement that we need to remain protected under its terms.
I propose we modify the clause to provide that the new NDA supplements (rather than supersedes) prior confidentiality agreements. In the event of any conflict, the more protective provisions would control.
Alternatively, if there are specific provisions from the prior NDA that you'd like to replace, we can address those specifically rather than superseding the entire agreement.
I've attached suggested language. Please let me know if this works or if you'd like to discuss.
Best,
[Your Name]
Addressing Non-Reliance Waiver
Use when the clause includes a broad non-reliance provision
Hi [Name],
I've reviewed Section [X] of the NDA and have a question about the non-reliance language.
The current language states that we're not relying on any representations not expressly set forth in the agreement. While we understand the purpose, our policy is to preserve claims for fraud or intentional misrepresentation in all our agreements.
Would you accept adding: "Nothing in this section shall limit liability for fraud, intentional misrepresentation, or willful misconduct"?
This is standard practice and shouldn't affect legitimate concerns about undefined expectations - it simply ensures neither party can use the contract to insulate themselves from liability for intentional lies.
Best,
[Your Name]
Simplifying Amendment Procedures
Use when amendment requirements are too onerous
Hi [Name],
The amendment provision in Section [X] requires officer signatures and legal department approval for any changes. This would make routine modifications impractical.
We propose a tiered approach:
1. Administrative changes (notice addresses, designated contacts, administrative procedures) can be made by email between authorized representatives.
2. Material changes (term, scope of confidential information, confidentiality obligations, remedies) require a written amendment signed by authorized representatives.
This balances the need for flexibility on routine matters with appropriate formality for substantive changes. If you'd prefer, we can limit email amendments to a specific list of administrative items rather than a general category.
Best,
[Your Name]
Common Carve-Outs to Negotiate
| Carve-Out | Purpose | Sample Language |
|---|---|---|
| Prior NDA preservation | Keeps existing protection for past disclosures | "This Agreement supplements all prior confidentiality agreements, which remain in effect." |
| Fraud claims | Preserves right to sue for lies | "Nothing herein limits liability for fraud or intentional misrepresentation." |
| Statutory rights | Preserves trade secret and IP law rights | "Each party retains all rights under trade secret law regardless of this Agreement." |
| Other agreements | Protects master agreements, licenses | "This Agreement does not supersede confidentiality terms in [specific agreement]." |
| Email amendments | Allows informal administrative changes | "Email exchanges regarding administrative matters shall be deemed written amendments." |
When to Compromise
Acceptable Compromises
- Specific supersession: If they identify specific prior agreements to supersede (rather than blanket supersession), that may be acceptable if you agree those agreements should be replaced.
- Non-reliance with fraud carve-out: A non-reliance waiver is reasonable if it includes an express fraud/intentional misconduct carve-out.
- Officer signatures for material amendments: Requiring signatures from officers or designated legal contacts for material changes is reasonable, as long as administrative changes don't require this.
Red Lines
- Blanket supersession: Don't accept language that terminates all prior NDAs if you've made important disclosures under them.
- Complete waiver of fraud claims: Non-reliance language that attempts to waive fraud claims entirely is a red line.
- Impossible amendment procedures: Requiring board approval or multiple layers of sign-off for any change makes the agreement practically immutable.
Next Steps
- Inventory prior agreements: List all existing confidentiality agreements with this counterparty
- Review the draft carefully: Identify supersession, non-reliance, and amendment provisions
- Propose specific language: Use the examples in this guide as starting points
- Get oral promises in writing: Before signing, ensure any important representations are in the agreement
- Document your concerns: If you accept less-than-ideal language, note it for future reference
Related Resources
Entire Agreement Clause Language - Copy-paste ready versions
Severability Clause - What happens if provisions are invalid
Waiver Clause - Related provisions on waiving rights