Enables court orders to immediately stop breaches and establishes that confidentiality violations cause irreparable harm.
⚠ Medium Risk
📚
Plain English Explanation
An injunctive relief clause establishes the right to seek court orders that immediately stop a breach of confidentiality, rather than waiting for a lawsuit to conclude and recovering money damages afterwards. This is crucial for confidentiality agreements because once a secret is out, money often can't undo the damage.
These clauses typically include two key components:
Acknowledgment of irreparable harm: The parties agree upfront that a breach will cause harm that can't be adequately compensated with money, which is a legal prerequisite for getting an injunction.
Waiver of bond requirement: Normally, courts require the party seeking an injunction to post a bond (money held by the court to cover the other party's damages if the injunction was wrong). This clause may waive or minimize that requirement.
By including this clause, the disclosing party makes it easier to get emergency court relief without having to argue and prove irreparable harm at a hearing.
⚠
Why This Clause Matters
Speed of Response: When someone is about to disclose your trade secrets, you need to stop them immediately. Injunctive relief is the only way to prevent disclosure before it happens.
Practical Deterrence: Knowing that a quick court order is available creates strong incentives for the receiving party to be careful with confidential information.
Burden Shifting: Without this clause, the disclosing party must prove irreparable harm at a preliminary injunction hearing. With it, that burden is significantly reduced.
Bond Implications: If the bond requirement isn't waived, a small company may not be able to afford the bond needed to get an injunction, making the remedy theoretical only.
Mutual vs. One-Sided: Since most NDAs involve two-way disclosure, injunctive relief provisions should typically be mutual.
🎯
Risk Factors
Automatic Entitlement Language: Some clauses say the party "shall be entitled to" an injunction. Courts still have discretion; the clause helps but doesn't guarantee relief.
Bond Waivers: Waiving the bond requirement entirely favors the disclosing party but could expose you to meritless injunction attempts.
Forum Shopping: The clause may specify where injunctions can be sought. Beware of provisions that let the other party seek relief in inconvenient courts.
Additional Remedies: The clause should clarify that injunctive relief is in addition to (not instead of) money damages and other remedies.
Enforceability Limits: Courts ultimately decide whether to issue injunctions based on their own rules and discretion - the clause influences but doesn't control the outcome.
📄
Clause Versions
Injunctive Relief
Each party acknowledges that a breach of the confidentiality obligations under this Agreement may cause the non-breaching party irreparable harm for which monetary damages would be an inadequate remedy.
Accordingly, each party agrees that, in the event of any actual or threatened breach of this Agreement by the other party, the non-breaching party shall be entitled to seek injunctive or other equitable relief from a court of competent jurisdiction to restrain such breach or threatened breach, without the necessity of proving actual damages and without prejudice to any other rights and remedies the non-breaching party may have at law or in equity.
The seeking or obtaining of such relief shall not limit or preclude the non-breaching party from pursuing any other remedies available to it, including monetary damages.
The party against whom injunctive relief is sought shall have the opportunity to respond and contest the application for such relief in accordance with applicable court rules and procedures.
Note: This balanced version acknowledges irreparable harm mutually, preserves other remedies, and maintains normal procedural protections for the responding party.
Equitable Remedies
Each party acknowledges that a breach of this Agreement may cause irreparable harm to the non-breaching party. The parties agree that the non-breaching party may seek injunctive or other equitable relief from any court of competent jurisdiction to prevent or restrain any breach or threatened breach of this Agreement.
Nothing in this section shall:
(a) Require either party to prove actual damages as a condition to seeking equitable relief;
(b) Be construed as waiving or limiting any other rights or remedies available to either party;
(c) Create any presumption or conclusive determination regarding the appropriateness of equitable relief in any particular circumstance; or
(d) Limit either party's right to contest the other party's application for equitable relief.
Any bond required in connection with a request for injunctive relief shall be set at a nominal amount unless a court determines that a higher amount is required.
Either party's pursuit of equitable relief shall not be deemed an election of remedies and shall not preclude the pursuit of any other available remedies, including monetary damages, and shall not be considered in determining the adequacy of legal remedies.
Why this favors you: Less aggressive language ("may seek" vs. "shall be entitled"), preserves right to contest, suggests nominal bond instead of waiver, and explicitly doesn't prejudice the appropriateness determination.
Mandatory Injunctive Relief
The Receiving Party hereby acknowledges and agrees that:
(a) Any unauthorized disclosure or use of Confidential Information will cause the Disclosing Party immediate and irreparable harm that cannot be adequately compensated by monetary damages;
(b) The Disclosing Party SHALL BE ENTITLED, as a matter of right and without proof of actual damages, to obtain immediate injunctive relief, including temporary restraining orders, preliminary injunctions, and permanent injunctions, from any court of competent jurisdiction;
(c) The Receiving Party WAIVES any requirement that the Disclosing Party post a bond or other security as a condition to obtaining any form of injunctive relief;
(d) The Receiving Party WAIVES any defense based on the availability of an adequate remedy at law;
(e) The Disclosing Party may seek injunctive relief in any jurisdiction where Confidential Information is located, where the Receiving Party has assets, or where the Receiving Party conducts business;
(f) The Receiving Party consents to the personal jurisdiction of the courts of [Disclosing Party's State] for purposes of any application for injunctive relief; and
(g) Upon any application for injunctive relief by the Disclosing Party, the Receiving Party shall bear the burden of proving that no unauthorized disclosure or use has occurred or is threatened.
The Disclosing Party's right to injunctive relief is in addition to all other remedies available at law or in equity, including recovery of actual damages, consequential damages, and attorneys' fees.
Warning - Highly aggressive: One-sided obligations, complete waiver of bond requirement, waiver of legal defenses, expansive jurisdiction provisions, shifts burden of proof to receiving party, and includes consequential damages. Courts may not enforce all provisions.
💡
Negotiation Tips
1
Make It Mutual: Both parties likely share confidential information. If they want injunctive relief rights, you should have them too. Resist one-sided provisions.
2
Preserve Your Right to Contest: Any injunctive relief clause should preserve your right to respond to and contest an injunction application. Courts generally protect this right anyway.
3
Resist Complete Bond Waivers: Accept "nominal bond" or "minimum bond required by law" language instead of complete waivers, which protect you from frivolous injunction attempts.
4
Watch Jurisdiction Provisions: Don't accept clauses that let them seek injunctions anywhere in the world. Limit to courts that already have jurisdiction under the agreement.
5
Avoid Burden-Shifting: Never accept clauses that require you to prove you didn't breach - that reverses normal legal standards and creates unfair exposure.
6
Understand Limits: Remember that courts ultimately decide injunction applications based on their own rules. The clause helps establish irreparable harm but isn't a guarantee.