Notice Clause FAQ

A notice clause specifies how parties must communicate formal notifications under the NDA - things like breach allegations, termination notices, requests for return of materials, or demands to cure violations.

What notice clauses typically specify:

• Delivery methods: Which methods are acceptable (mail, email, courier, etc.)
• Addresses: Where notices should be sent
• Attention lines: Who should receive the notice (General Counsel, CEO, etc.)
• Effective date: When a notice is considered "received"

Why it matters:

• Triggers deadlines: Many NDA obligations have time limits that start when notice is "received"
• Proves delivery: Following the notice procedure creates evidence of proper communication
• Prevents disputes: Clear rules avoid "I never got that" arguments
• Protects rights: Improper notice may void your right to enforce certain provisions

Real-world example: If your NDA requires 30 days' notice before termination, and you send notice by email when the clause requires certified mail, your termination may be invalid.

Use formal notice procedures for anything with legal consequences.

Communications that typically require formal notice:

• Allegations of breach
• Termination of the NDA
• Requests to return or destroy confidential information
• Demands for access or audit rights
• Claims of damages or indemnification
• Notices of potential litigation
• Change of address for future notices

Communications that probably don't need formal notice:

• Day-to-day project coordination
• Scheduling meetings
• Sharing confidential information (unless your NDA requires formal transmission records)
• Casual status updates
• Questions about NDA interpretation (though document these)

When in doubt: Use formal notice. It never hurts to be more formal than required, but failing to use proper notice procedures when needed can void your rights.

Best practice: For important communications, use formal notice procedures AND send a courtesy email to your regular contact. Belt and suspenders.

A notice is effective when it meets all the requirements in your NDA's notice clause.

Typical requirements for effective notice:

• Content: Contains all required information (what you're notifying about)
• Method: Sent by an approved delivery method
• Address: Sent to the correct address specified in the NDA
• Recipient: Directed to the attention of the right person/department

Common effective date provisions:

• Upon receipt: Effective when actually received (regardless of method)
• Upon sending: Effective when sent (rare, but sometimes used)
• Constructive receipt: Deemed received after X days, regardless of actual receipt

Examples of constructive receipt:

• "Notices by certified mail shall be deemed received 5 business days after mailing"
• "Notices by overnight courier shall be deemed received the next business day"
• "Email notices shall be deemed received when sent, unless sender receives a delivery failure notification"

Key point: "Deemed received" provisions protect the sender from recipients who claim they never got the notice. Once you follow proper procedures, the notice is effective even if the other party ignores it.

Only if your NDA specifically permits email notices.

Check your NDA for language like:

• "Notices may be sent by email to the addresses specified below" - Email is permitted
• "Notices shall be sent by certified mail or overnight courier" - Email is NOT permitted
• "Email notice is effective only if acknowledged by the recipient" - Email requires confirmation

Common approaches to email notices:

• Email permitted: Modern NDAs often allow email for speed and efficiency
• Email plus backup: Some require email AND a hard copy
• Email prohibited: Older or more formal NDAs may exclude email entirely
• Email for routine, mail for formal: Different methods for different notice types

If your NDA doesn't mention email:

Email probably isn't sufficient for formal notices. Courts generally interpret notice clauses strictly. If the NDA lists specific methods and email isn't among them, don't rely on email alone.

Best practice: Even if email is permitted, send important notices by multiple methods. Email for speed, plus certified mail or courier for proof.

Proving email receipt is trickier than proving physical delivery, but there are strategies.

Evidence that helps prove email delivery:

• Sent folder copy: Shows the email was sent from your system
• Read receipt: If the recipient's system sends one (often blocked)
• Reply from recipient: Best evidence - they clearly received it
• No bounce-back: Absence of delivery failure notice suggests delivery
• Email tracking software: Third-party tools that confirm delivery/opens

Problems with email proof:

• Read receipts can be disabled or blocked
• Spam filters may catch the email without generating a bounce
• The recipient can claim it went to spam
• Email tracking tools aren't admissible in all jurisdictions

NDA language that helps:

• "Email notice is deemed received when sent, absent delivery failure notification"
• "Recipient acknowledges that [email address] is regularly monitored"
• "Recipient agrees to confirm receipt of notices within 24 hours"

Practical tips:

• Request confirmation of receipt in the email
• Follow up with a phone call if no response
• Send backup notice by certified mail for critical matters
• Keep complete records of all sent emails and responses

Use exactly the email address specified in your NDA.

Common email address approaches in NDAs:

• Specific individual: "general.counsel@company.com" - Use this exact address
• Department inbox: "legal@company.com" - Often preferred for continuity
• Multiple addresses: "To: CEO with copy to: General Counsel"
• No email specified: Email may not be permitted

What NOT to do:

• Don't use a personal email you found for a contact at the company
• Don't assume the CEO's assistant's email counts as notice to the CEO
• Don't send to a general "info@" or "contact@" address unless specified
• Don't rely on LinkedIn messages or other informal channels

If the specified email bounces or seems wrong:

• Send notice by all other permitted methods immediately
• Attempt to reach the party to confirm correct email
• Document your attempts to deliver
• Consider the address change procedures in your NDA

Pro tip: At signing, verify all email addresses are correct and actively monitored. Test them if possible.

Each method offers different levels of proof and speed.

Certified Mail (USPS):

• Provides proof of mailing and proof of delivery (or attempted delivery)
• Recipient signs for delivery; you get a delivery confirmation
• Cost-effective for formal notices
• Delivery time: 3-7 business days typically
• Add "Return Receipt Requested" for a signed card proving delivery

Registered Mail (USPS):

• Highest security USPS option - chain of custody tracking
• Typically used for valuables, not just documents
• More expensive and slower than certified mail
• Rarely required for NDA notices

Overnight Courier (FedEx, UPS, DHL):

• Fastest delivery (next business day, often guaranteed)
• Detailed tracking and delivery confirmation
• More expensive but worth it for urgent notices
• Signature options available

Which to use:

• Time-sensitive: Overnight courier
• Important but not urgent: Certified mail with return receipt
• Required by NDA: Whatever the NDA specifies

Refused delivery generally still counts as effective notice if you followed proper procedures.

Legal principle: A party cannot avoid notice by refusing to accept delivery. If you send notice properly, their refusal doesn't void your notice.

Evidence of refusal:

• Certified mail returns marked "Refused" or "Unclaimed"
• Courier records showing delivery refused at the address
• Multiple failed delivery attempts

What to do if delivery is refused:

• Keep all records of the attempted delivery
• Note the date of refusal - this may be the "effective date" of notice
• Consider sending by alternative methods as backup
• Document everything in case of later dispute

NDA language that helps:

"Notice shall be deemed given when delivered, or if delivery is refused, when refusal is recorded by the carrier."

What if notice is returned "addressee unknown"?

• This is different from refusal - it suggests the address is wrong
• Check if the party provided an updated address
• Try alternative delivery methods
• Consider whether you have actual knowledge of a correct address

Yes, if your NDA permits it - and hand delivery can be very effective.

Advantages of hand delivery:

• Immediate - no waiting for mail or courier
• Certainty - you know it was delivered
• Personal - can be delivered directly to the right person
• No mailing costs

How to do it properly:

• Deliver to the address and person specified in the NDA
• Bring two copies - get one signed as a receipt
• Note the date, time, and who accepted delivery
• If the right person isn't available, delivery to a receptionist at the correct address usually counts

What if they won't sign a receipt?

• Leave the document and note who you gave it to
• Have a witness present if possible
• Prepare a written memo immediately after documenting what happened
• Consider following up with certified mail for belt-and-suspenders

Caution: Don't hand deliver in a confrontational situation. If relations are hostile, use certified mail or courier to maintain distance and create neutral third-party proof.

Send a formal written notice of the address change to the other party.

Most NDAs include language like:

"Either party may change its address for notice by providing written notice to the other party in accordance with this section."

How to send an address change notice:

• Use the notice procedures specified in the NDA
• Send to the other party's current notice address
• Clearly state your new address for future notices
• Specify the effective date of the change

Sample address change notice:

"Pursuant to Section [X] of the Non-Disclosure Agreement dated [Date] between [Party A] and [Party B], [Party A] hereby provides notice that its address for notices under the Agreement is changed, effective [Date], to: [New Address]. All future notices should be sent to this address."

Important: Until you send proper notice of address change, the old address remains effective. If you move and don't notify the other party, notices sent to your old address still count as delivered.

If they didn't properly notify you of an address change, notices to the old address are still effective.

Legal principle: The burden is on each party to keep the other informed of address changes. If they fail to do so, they can't claim they didn't receive notices sent to the address they provided.

However, if you have actual knowledge of the new address:

• Courts may require you to use good faith efforts to deliver to the known address
• Sending to an address you know is wrong may not constitute proper notice
• Best practice: send to both addresses if you know of a new one

When you discover mail is being returned:

• Try to find the correct address (website, phone call, public records)
• Send to any new address you discover
• Document your efforts to locate the correct address
• Keep sending to the original address too - it may still be effective

Red flag situations:

• The other party seems to be avoiding you
• Multiple delivery attempts fail with no response
• Their business may have closed or relocated

In these situations, consider consulting legal counsel about how to ensure effective notice.

Absolutely yes. Notice records can be critical evidence in disputes.

What to keep for notices you send:

• Copy of the notice itself
• Proof of sending (certified mail receipt, courier tracking number, email sent folder)
• Proof of delivery (return receipt, delivery confirmation, read receipt)
• Date sent and date received/deemed received
• Any responses received

What to keep for notices you receive:

• The original notice
• Envelope or courier package (may show postmark or send date)
• Date you actually received it
• Your response, if any

How long to keep records:

• At minimum: throughout the NDA term plus survival period
• Better: add 4-6 years for statute of limitations purposes
• Best: indefinitely for trade secret matters (no fixed limitation)

Organization tips:

• Create a dedicated folder for each NDA
• Scan and save electronic copies of physical documents
• Use consistent naming conventions with dates
• Consider contract management software for large portfolios

A breach notice is one of the most important notices you'll send. Do it right.

What to include in a breach notice:

• Reference the NDA: Date, parties, title
• Identify the breach: Which provision was violated
• Describe the facts: What happened, when, how you discovered it
• Demand cure: If the NDA allows cure, specify what's required
• Set deadline: By when must the breach be cured
• Reserve rights: Preserve your right to seek damages, injunctions, etc.

Delivery requirements:

• Follow all notice procedures in your NDA exactly
• Use multiple methods for certainty (e.g., courier plus email)
• Keep copies of everything

Common mistakes to avoid:

• Being vague about what the breach is
• Not giving a specific cure period
• Waiving rights by accepting partial performance
• Making threats you don't intend to follow through on
• Sending to the wrong address or person

Important: Have legal counsel review breach notices before sending. The notice itself may become evidence in litigation.

Termination notices end the NDA relationship - get them right.

Before sending, check:

• What termination rights exist (at will, for cause, mutual only)?
• How much advance notice is required?
• Are there any conditions to exercising termination?
• What happens to confidential information upon termination?

What to include:

• Reference to the NDA
• Clear statement of intent to terminate
• Effective date of termination
• Reason for termination (if required or strategic)
• Any demands related to termination (return of materials, etc.)

Sample termination notice:

"Pursuant to Section [X] of the Non-Disclosure Agreement dated [Date], [Party] hereby provides [30 days'] notice of termination. This Agreement shall terminate effective [Date]. In accordance with Section [Y], please return or certify destruction of all Confidential Information by [Date]. This notice is without prejudice to any surviving obligations under the Agreement."

Follow-up steps:

• Track that return/destruction obligations are satisfied
• Update your records to reflect terminated status
• Note when survival periods begin and end

Use the fastest method available under your NDA, then follow up with additional methods.

Priority order for urgent notices:

• 1. Email (if permitted) - immediate delivery
• 2. Phone call - get verbal confirmation, then send written follow-up
• 3. Same-day courier - many services offer same-day or next-morning delivery
• 4. Hand delivery - if you can physically get there
• 5. Fax - if specified in NDA (yes, some still require fax)

Belt-and-suspenders approach:

• Send by every available method simultaneously
• Start with email if permitted, follow immediately with courier
• Call to alert them that an urgent notice is coming
• Document the timing of each transmission

When you cannot meet a deadline:

• Send notice anyway - late notice may be better than no notice
• Document why the delay occurred
• Consider whether you need to seek a waiver or extension
• Consult counsel about the consequences of late notice

Practical tip: Keep templates of common notices ready to go. Don't draft from scratch when you're in a hurry.