Determines where disputes will be heard - which courts have authority and whether that forum selection is exclusive or non-exclusive.
⚠ Medium Risk
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Plain English Explanation
A jurisdiction and venue clause specifies where any legal disputes related to the NDA must be litigated. This is separate from the governing law clause - you might apply Delaware law but require disputes to be heard in California courts.
Jurisdiction refers to whether a court has the legal authority to hear a case. Venue refers to the specific geographic location where the case will be heard.
Key distinctions to understand:
Exclusive vs. Non-Exclusive: Exclusive venue means disputes can ONLY be heard in the specified courts. Non-exclusive means other courts may also have jurisdiction.
State vs. Federal Courts: Some clauses specify state courts, federal courts, or both. Federal courts can hear cases involving federal law or diverse citizenship.
Personal Jurisdiction: Parties must consent to the court's authority over them. This clause typically includes such consent.
Forum Non Conveniens: Parties often waive the right to argue the chosen forum is inconvenient.
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Why This Clause Matters
Litigation Costs: If disputes must be heard across the country from your location, you'll incur significant travel costs for attorneys, witnesses, and executives.
Home Court Advantage: Local courts may be more familiar with local business practices and more sympathetic to local parties. Juries from different regions may have different attitudes.
Practical Enforcement: Having to litigate in a distant jurisdiction creates a barrier to bringing legitimate claims. The other party may be counting on this.
Emergency Relief: For injunctions to stop ongoing disclosure, having to file in a distant court can cost critical hours or days.
Court Expertise: Some courts (like Delaware Chancery Court) have specialized expertise in commercial disputes.
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Risk Factors
Distance: If the specified venue is far from your location, you face higher litigation costs and logistical challenges.
Exclusive Venue: Exclusive jurisdiction clauses eliminate your ability to sue in more convenient courts, even where you might otherwise have jurisdiction.
Federal vs. State: Federal courts have different procedural rules and may have more crowded dockets. Some parties prefer state court for speed; others prefer federal court for perceived neutrality.
International Venues: Foreign courts may have unfamiliar procedures, different discovery rules, and judgment enforcement challenges.
Waiver of Objections: Broad waivers of venue objections eliminate defenses you might otherwise raise.
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Clause Versions
Jurisdiction and Venue
Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts located in [Neutral State/County] for any action or proceeding arising out of or relating to this Agreement.
Each party agrees that:
(a) It will not raise any objection to the laying of venue in such courts;
(b) It will not plead or claim that any such action or proceeding has been brought in an inconvenient forum; and
(c) Service of process may be effected by registered mail to the address set forth in this Agreement.
Notwithstanding the foregoing:
(i) Either party may seek injunctive or other equitable relief in any court of competent jurisdiction where such relief is necessary to protect such party's Confidential Information; and
(ii) Nothing herein shall prevent either party from bringing an action in the courts of any jurisdiction where the other party has assets, for the purpose of enforcing a judgment.
If either party initiates litigation in a court other than those specified above, the non-initiating party may, at its option, require transfer to the courts specified herein or proceed in the chosen forum without waiving the provisions of this section for future disputes.
Note: This balanced version uses non-exclusive jurisdiction (preserving flexibility), allows injunctive relief elsewhere when needed, permits judgment enforcement where assets are located, and gives parties options if the other side files in an unexpected forum.
Jurisdiction and Venue
Any action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in [Your County, Your State], and each party hereby:
(a) Irrevocably submits to the exclusive jurisdiction of such courts;
(b) Waives any objection to the laying of venue in such courts;
(c) Waives any claim that any such action or proceeding has been brought in an inconvenient forum;
(d) Agrees that service of process may be effected by certified mail, return receipt requested, to the address set forth herein, with service deemed complete upon receipt or refusal;
(e) Waives the right to a jury trial in any action arising under or relating to this Agreement; and
(f) Agrees not to commence any action against the other party in any other forum.
Notwithstanding the exclusive jurisdiction provisions above, we reserve the right to seek temporary restraining orders, preliminary injunctions, or other emergency equitable relief in any court of competent jurisdiction to prevent irreparable harm pending resolution of disputes in the exclusive forum.
The prevailing party in any action to enforce this Agreement shall be entitled to recover its reasonable attorneys' fees and costs from the non-prevailing party.
Why this favors you: Exclusive jurisdiction in your home courts, jury trial waiver (favoring the party with more legal resources), broad waiver of venue objections, and fee-shifting provisions. You retain flexibility for emergency injunctive relief while requiring the other party to litigate in your backyard.
Exclusive Jurisdiction and Venue
ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY QUESTION REGARDING ITS EXISTENCE, VALIDITY, OR TERMINATION, SHALL BE RESOLVED EXCLUSIVELY IN THE COURTS OF [THEIR DISTANT STATE/COUNTRY].
Each party irrevocably and unconditionally:
(a) Submits to the exclusive jurisdiction of the courts of [Their State/Country] and agrees that any action may only be brought in such courts and no other;
(b) Waives any objection which it may have at any time to the laying of venue of any proceedings brought in such courts, and agrees not to claim that such proceedings have been brought in an inconvenient forum or that such courts do not have jurisdiction;
(c) Waives any right to a jury trial;
(d) Waives any right to seek injunctive or equitable relief in any court other than the courts of [Their State/Country];
(e) Agrees that a judgment obtained in [Their State/Country] shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by law;
(f) Agrees to bear its own costs and attorneys' fees regardless of outcome; and
(g) Agrees that service of process may be effected by any method permitted under the laws of [Their State/Country], including ordinary mail to the last known address, with service deemed complete upon dispatch.
This forum selection clause shall apply to all claims, whether in contract, tort, or otherwise, and regardless of where any alleged breach or injury occurred.
Warning - One-sided: Requires all litigation in their distant jurisdiction with no exceptions even for emergency relief, waives jury trial, bars you from recovering attorneys' fees, allows service by ordinary mail, and makes their judgments automatically enforceable everywhere. Creates substantial barriers to bringing any claims.
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Negotiation Tips
1
Propose a Neutral Venue: If they want their home courts and you want yours, suggest a neutral location that's reasonably accessible to both parties. Delaware, New York, or the geographic midpoint are common choices.
2
Insist on Non-Exclusive Jurisdiction: Non-exclusive jurisdiction gives you flexibility while still allowing suit in the specified courts. This is often an acceptable compromise when exclusive jurisdiction is too one-sided.
3
Preserve Injunctive Relief Rights: Even if you accept venue restrictions generally, carve out the ability to seek emergency injunctive relief wherever needed to stop ongoing disclosure.
4
Consider Federal vs. State: Federal courts may be preferable for complex commercial disputes. State courts may be faster in some jurisdictions. Include both as options.
5
Resist Jury Trial Waivers: Jury trial waivers generally favor the party with more legal resources. If you're the smaller party, you may want to preserve jury trial rights.
6
Address Judgment Enforcement: Include language allowing enforcement of judgments wherever the other party has assets. Winning a judgment is meaningless if you can't collect.