Remedies and Injunctive Relief Emails

Dear [Name], We have reviewed the remedies provisions in Section [X] and need to propose modifications to the injunctive relief language. The current draft states that the Disclosing Party "shall be entitled to" injunctive relief as a matter of right. This language attempts to contractually guarantee a remedy that, under applicable law, remains within the discretion of the court. We cannot agree to language that purports to predetermine judicial outcomes. We propose the following revision: Current: "The Disclosing Party shall be entitled to seek and obtain injunctive relief..." Proposed: "Either party may seek injunctive or other equitable relief from a court of competent jurisdiction. The parties acknowledge that breaches of confidentiality obligations may cause harm for which monetary damages could be an inadequate remedy." This revised language: - Preserves your ability to seek emergency relief - Appropriately acknowledges potential harm without creating automatic entitlements - Maintains court discretion as required by applicable procedural rules - Makes the provision mutual, which is appropriate for a mutual NDA Courts have consistently held that contractual provisions cannot bind a court to grant injunctive relief. Our proposed language achieves your practical goals while remaining legally sound. Please let me know if you would like to discuss. Best regards, [Your Name]

Dear [Name], I am writing regarding the bond waiver provision in Section [X] of the draft NDA. The current language states that we "waive any requirement that [Disclosing Party] post a bond or security" in connection with injunctive relief. We cannot agree to a complete waiver of bond requirements for the following reasons: 1. Bond requirements exist to protect parties against damages from wrongfully issued injunctions 2. A complete waiver removes any disincentive for seeking frivolous or overbroad emergency relief 3. If an injunction is later found to have been improper, we would have no recourse for resulting business disruption We understand you want to avoid the cost and delay of posting a substantial bond for legitimate emergency relief. We propose a compromise: "Any bond or other security required in connection with injunctive relief shall be set at a reasonable amount as determined by the court, which the parties agree should not exceed $[25,000] absent extraordinary circumstances." This approach: - Caps the bond at a reasonable amount that should not impede legitimate enforcement - Preserves some protection against wrongful injunctions - Leaves ultimate determination to the court's discretion We believe this is a fair middle ground. Please let us know your thoughts. Best regards, [Your Name]

Dear [Name], We need to address the damages provisions in Section [X] of the NDA. The current draft permits recovery of "all consequential, incidental, and special damages" for breach of the confidentiality obligations. This creates exposure that is essentially unlimited and unpredictable, which we cannot accept as a matter of corporate policy. Consequential damages, particularly lost profits and lost business opportunities, are inherently speculative and can dwarf the value of any transaction between our companies. A mutual exclusion of such damages is standard practice in commercial agreements precisely because the risk is disproportionate to the relationship. We propose adding the following mutual limitation: "NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUE, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES." This limitation: - Is mutual, protecting both parties equally - Preserves liability for direct, provable damages - Is consistent with market-standard NDA terms - Does not limit equitable remedies like injunctive relief I am confident we can find common ground on this issue. Please let me know if you would like to discuss alternative approaches. Best regards, [Your Name]

Dear [Name], Thank you for your comments on the remedies section. I want to address your concerns about the irreparable harm acknowledgment while explaining why this provision is important to us. We are sharing highly sensitive [technical/business/financial] information that, if disclosed, could cause competitive harm that cannot be undone or adequately compensated through monetary damages. The irreparable harm acknowledgment serves a practical purpose: it streamlines emergency relief proceedings by establishing a fact that would otherwise need to be proven at a hearing. That said, we understand your concern about contractually predetermining court outcomes. We are willing to revise the language as follows: Current: "The Receiving Party acknowledges that any breach WILL cause irreparable harm..." Proposed: "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 alone may be an inadequate remedy." Note our proposed changes: - "Will" becomes "may" - making this a reasonable acknowledgment rather than an absolute declaration - The provision is now mutual, applying equally to both parties - We preserve the acknowledgment of potential inadequacy of monetary damages This is a standard formulation that courts have found persuasive without being determinative. It simply reflects the practical reality that trade secret and confidential information breaches often cause harm that money cannot repair. Can we proceed on this basis? Best regards, [Your Name]

Dear [Name], I am writing about the attorneys' fees provision in Section [X] of the NDA. The current draft requires the Receiving Party to "reimburse the Disclosing Party for all attorneys' fees and costs" in connection with any breach or enforcement action. This one-sided fee-shifting creates significant litigation risk for us without corresponding accountability for the other party. One-sided fee provisions: - Encourage aggressive enforcement positions because there is no downside risk - Discourage defending against weak or meritless claims - Create asymmetric bargaining power in any dispute We propose replacing this with a mutual prevailing party standard: "In any action to enforce this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs from the non-prevailing party." Alternatively, we would accept: "Each party shall bear its own attorneys' fees and costs in any action relating to this Agreement." Either approach is fair and balanced. The prevailing party standard actually provides strong incentive for both sides to litigate responsibly and settle meritorious claims. Each party bearing its own costs is the default rule and removes litigation risk as a negotiating weapon. We look forward to resolving this issue. Best regards, [Your Name]

Dear [Name], We need to address the liquidated damages provision in Section [X], which provides for liquidated damages of $[X] per breach. We have several concerns with this provision: 1. Legal Enforceability: Liquidated damages provisions are only enforceable if they represent a reasonable pre-estimate of anticipated damages at the time of contracting. The proposed amount appears to bear no reasonable relationship to potential harm and may be challenged as an unenforceable penalty. 2. Vagueness: The provision applies to "each breach" without defining what constitutes a single breach. Does one unauthorized disclosure to multiple people constitute one breach or multiple breaches? This ambiguity could lead to arbitrary multiplication of damages. 3. Disproportionality: A fixed amount cannot account for the varying severity of potential breaches. Minor technical violations would trigger the same damages as serious disclosures. We propose one of the following alternatives: Option A - Remove the provision entirely and rely on actual damages: "The non-breaching party shall be entitled to recover its actual, provable damages resulting from any breach." Option B - If liquidated damages are required, tie them to demonstrable harm: "If the parties agree that damages for a particular disclosure would be difficult to calculate, they may specify liquidated damages for that specific category of information in a separate schedule, which amount shall reflect a reasonable estimate of anticipated harm." We are open to discussing what specific concerns drive the need for liquidated damages and finding a solution that addresses those concerns appropriately. Best regards, [Your Name]

Dear [Name], Thank you for your comments on the NDA. I understand you have proposed deleting Section [X] (Remedies) in its entirety on the basis that parties can rely on their default legal rights. While we appreciate the desire to simplify the agreement, we cannot proceed without some form of remedies provision for the following reasons: 1. Acknowledgment of Potential Harm: Without a mutual acknowledgment that breaches may cause irreparable harm, we would need to fully litigate this issue at any emergency hearing, causing delay when time is critical. 2. Cumulative Remedies: Default rules in some jurisdictions require election between legal and equitable remedies. We need explicit language confirming remedies are cumulative. 3. Clarity of Expectations: A clear remedies section sets expectations for both parties about the consequences of breach, which supports compliance. We are willing to significantly streamline the provision. Here is a minimal version we could accept: "Remedies. Each party acknowledges that a breach of this Agreement may cause the non-breaching party irreparable harm for which monetary damages may be inadequate. Accordingly, either party may seek injunctive or other equitable relief in addition to any other remedies available at law or in equity. The remedies set forth herein are cumulative and not exclusive." This is only three sentences and addresses our core concerns without creating one-sided advantages. It: - Uses mutual language - Says "may" not "will" regarding harm - Does not waive bond requirements - Does not address damages limitations or fee-shifting Would this streamlined approach work for you? Best regards, [Your Name]

Dear [Name], I noticed that your proposed revisions to Section [X] removed the "cumulative remedies" language. We need to restore this provision. Under the doctrine of election of remedies (still followed in some jurisdictions), a party who obtains equitable relief may be deemed to have waived the right to monetary damages for the same breach. This creates a significant problem for confidentiality breaches: - We may need immediate injunctive relief to stop ongoing disclosure - We may also have substantial provable damages from disclosure that already occurred - Without cumulative remedies language, pursuing an injunction could foreclose damages The cumulative remedies provision simply confirms that we can pursue all available remedies - it does not create new rights or expand liability. It is equally beneficial to you as the receiving party if the NDA is mutual. We propose the following language: "Cumulative Remedies. The remedies provided in this Agreement are cumulative and not exclusive of any other remedies provided by law or equity. The exercise of any remedy shall not preclude the exercise of any other remedy available under this Agreement, at law, or in equity." This is standard boilerplate that simply clarifies the parties' intent without expanding anyone's substantive rights. It protects both parties equally in a mutual NDA context. Please confirm you can accept this addition. Best regards, [Your Name]