Ensures the agreement remains valid and enforceable even if individual provisions are found unenforceable by a court.
✓ Low Risk
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Plain English Explanation
A severability clause provides a safety net for the agreement. It says that if any provision of the NDA is found to be invalid, illegal, or unenforceable by a court, the rest of the agreement remains in effect. The invalid provision is either "severed" (removed) or modified to the minimum extent necessary to make it enforceable.
This matters because different jurisdictions have different rules. For example:
A non-solicitation provision might be enforceable in Texas but void in California
A duration period might be too long under one state's laws but not another's
Certain remedies or liability provisions may be restricted in some jurisdictions
Without a severability clause, a court that finds one provision unenforceable might invalidate the entire agreement. With it, only the problematic provision is affected, and the rest of your confidentiality protections stay intact.
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Why This Clause Matters
Preserves Core Protections: Even if one clause is struck down, the core confidentiality obligations remain enforceable.
Cross-Jurisdictional Issues: When parties operate in different jurisdictions, some provisions may be valid in one but not the other. Severability provides flexibility.
Overly Aggressive Drafting: If one party pushed for very aggressive terms that turn out to be unenforceable, severability prevents those terms from taking down the whole agreement.
Blue Penciling: Some clauses include "blue pencil" provisions that allow courts to modify (rather than just delete) unenforceable terms to make them enforceable.
Reformation Authority: Advanced versions give parties or courts authority to substitute enforceable provisions that accomplish similar purposes.
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Risk Factors
Essential Terms: Some provisions may be so fundamental that the agreement doesn't make sense without them. The clause should address this scenario.
Reformation Powers: Giving courts broad power to rewrite provisions can lead to unpredictable outcomes. Some parties prefer simple severance over reformation.
Partial Invalidity: What happens if a provision is only partially invalid? The clause should address how to handle partial issues.
Notification Requirements: Some clauses require parties to negotiate a replacement provision. This adds uncertainty but may lead to better outcomes.
No Guarantee: Courts ultimately decide whether to sever or invalidate. The clause helps but doesn't guarantee the desired outcome.
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Clause Versions
Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable while preserving the parties' original intent. If such modification is not possible, the provision shall be severed from this Agreement.
In either case, the remaining provisions of this Agreement shall continue in full force and effect and shall be construed as if the invalid, illegal, or unenforceable provision had not been included, unless the removal or modification of such provision would materially alter the rights or obligations of the parties.
The invalidity, illegality, or unenforceability of any provision in any jurisdiction shall not affect the validity, legality, or enforceability of such provision in any other jurisdiction.
If any provision relating to the scope, duration, or geographic reach of the confidentiality obligations is found to be overly broad, such provision shall be construed in a manner to make it enforceable to the fullest extent permitted by applicable law.
Note: This balanced version allows modification before severance, preserves the agreement in other jurisdictions, includes the "material alteration" exception, and specifically addresses scope/duration issues common in NDAs.
Severability and Reformation
If any provision of this Agreement is held to be invalid, illegal, or unenforceable under applicable law, the remaining provisions shall remain in full force and effect.
The parties agree that:
(a) Any invalid provision shall be deemed modified to the minimum extent necessary to make it valid while reflecting the original intent of the parties;
(b) If a court declines to reform an invalid provision, the parties agree to negotiate in good faith a valid replacement provision that accomplishes the original business purpose;
(c) The invalidity of any provision in one jurisdiction shall not affect its validity in any other jurisdiction where it is enforceable;
(d) No provision shall be deemed essential to the Agreement unless both parties expressly agreed in writing that the Agreement would not exist without such provision; and
(e) The confidentiality obligations set forth herein shall be given the broadest interpretation consistent with applicable law.
Notwithstanding the foregoing, if a material portion of the confidentiality or non-disclosure provisions is found unenforceable, either party may terminate this Agreement upon thirty (30) days written notice, provided that all Confidential Information shall be returned or destroyed in accordance with this Agreement.
The burden of proving that any provision is invalid, illegal, or unenforceable shall rest with the party challenging such provision.
Why this favors you: Multiple layers of protection (reform, then negotiate, then sever), presumes provisions are non-essential unless expressly agreed otherwise, burden on challenging party, termination right if core protections fail, and maximizes confidentiality obligations.
Limited Severability
If any provision of this Agreement is found to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be severed from this Agreement and shall be of no further force or effect.
The parties expressly agree that:
(a) Courts shall NOT have authority to modify, reform, or "blue pencil" any provision of this Agreement. Any invalid provision shall simply be deleted in its entirety;
(b) The following provisions are ESSENTIAL to this Agreement, and if any is found invalid or unenforceable, the entire Agreement shall be void and of no effect:
(i) The definition of Confidential Information;
(ii) The non-disclosure obligations;
(iii) The non-use restrictions; and
(iv) The term and survival provisions;
(c) If any limitation on the scope, duration, or geographic application of any restriction is found to be unenforceable, no substitute limitation shall apply, and the restriction shall be void in its entirety;
(d) The severance of any provision shall not affect the Receiving Party's obligation to return or destroy all Confidential Information; and
(e) A determination of invalidity in any jurisdiction shall create a presumption of invalidity in all other jurisdictions.
The parties acknowledge that this limited severability provision is a material inducement to entering into this Agreement.
Warning - Creates significant risk: No reformation allowed (all-or-nothing on each provision), core provisions declared "essential" (meaning entire NDA could be voided if any is unenforceable), cross-jurisdictional invalidity presumption, and no substitute restrictions. Could result in complete loss of confidentiality protections.
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Negotiation Tips
1
Allow Reformation: Prefer clauses that allow courts to modify overly broad provisions rather than just deleting them entirely. This preserves some protection even when terms are aggressive.
2
Avoid "Essential Provision" Lists: Be cautious of clauses that identify provisions as "essential" - if those are found invalid, the whole agreement fails. Most provisions should not be deemed essential.
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Preserve Jurisdictional Independence: Ensure invalidity in one jurisdiction doesn't affect enforceability elsewhere. This is especially important for cross-border agreements.
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Include Negotiation Fallback: Consider requiring the parties to negotiate a replacement provision if one is invalidated. This gives you more control over the outcome than leaving it to a court.
5
Address Duration and Scope Specifically: Duration and geographic scope are the provisions most likely to be challenged in NDAs. Include specific language about how these should be handled if found overbroad.
6
Keep It Simple: This is usually standard boilerplate. Avoid over-complicating it unless there are specific concerns about enforceability of particular provisions.