Miscellaneous Clause

Waiver Provisions

Protects your right to enforce the NDA later, even if you overlook or excuse a prior violation.

Low Complexity

What This Clause Does

A waiver provision (also called a "no waiver" clause) states that if one party fails to enforce a right under the agreement, or overlooks a breach by the other party, that failure does not waive their right to enforce the same or other provisions in the future.

Without this clause, a party who repeatedly ignores minor breaches might be found to have "waived" their right to later enforce the agreement. The waiver clause prevents this by requiring that any waiver be explicit and in writing.

Why This Clause Matters

  • Preserves Future Rights: You can choose to overlook small violations without losing the right to enforce against larger ones later.
  • Flexibility in Enforcement: Allows parties to maintain business relationships without immediately escalating every minor issue.
  • Prevents "Gotcha" Arguments: Stops the breaching party from claiming "you never enforced this before, so you can't now."
  • Clear Waiver Process: Requires waivers to be in writing, creating a clear record of what was actually waived.
  • Standard Boilerplate: This is a widely accepted clause that rarely generates negotiation controversy.

Legal Context

Under the common law doctrine of "waiver," a party may lose contractual rights through their conduct - especially repeated failure to enforce. Courts look at whether the non-enforcing party's actions gave the other side a reasonable belief that the right would not be enforced. A well-drafted no-waiver clause helps rebut this argument by showing the parties intended enforcement to remain discretionary.

No Waiver The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of such provision or any other provision. Any waiver must be in writing and signed by the waiving party.
Basic Version: Simple and direct. Covers the essential point that non-enforcement does not equal waiver. Suitable for simple NDAs.
No Waiver No failure or delay by either party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. Any waiver of any provision of this Agreement shall be effective only if in writing and signed by the party granting such waiver, and shall apply only to the specific instance and for the specific purpose for which it was given. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any other rights or remedies provided by law.
Standard Version: Comprehensive coverage addressing partial exercise, cumulative remedies, and limited scope of any waiver. Appropriate for most business NDAs.
Strict No Waiver and Preservation of Rights No failure, delay, or forbearance by either party in exercising any right, power, remedy, or privilege under this Agreement or at law or in equity shall operate as a waiver thereof, regardless of the length of such delay or the number of such failures. No single or partial exercise of any right shall preclude any other or further exercise thereof or the exercise of any other right. Any waiver of any breach, right, or provision of this Agreement shall be effective only if: (a) In writing; (b) Signed by an authorized officer of the waiving party; (c) Expressly stated to be a waiver; and (d) Limited to the specific breach or right expressly identified therein. No waiver shall be implied from any course of dealing between the parties, any acceptance of late or partial performance, any failure to object to any breach, or any other conduct, regardless of custom or industry practice. Any waiver granted shall not constitute a waiver of any other breach or right, whether of the same or a different kind, and shall not be construed as a continuing waiver. The rights and remedies provided in this Agreement are cumulative and shall be in addition to, and not in substitution for, any other rights and remedies available at law or in equity. Election of one remedy shall not preclude pursuit of other remedies.
Aggressive Version: Maximum protection with strict requirements for valid waivers. Requires officer signature and express identification of waived items. Useful for high-value confidential information.

One-Sided Waiver Rights

If only one party can claim the benefit of the no-waiver clause, the other party risks losing rights through non-enforcement while the protected party doesn't.

Automatic Waiver Triggers

Watch for language that creates automatic waivers under certain conditions (e.g., "failure to object within 30 days constitutes waiver"). These undermine the purpose of the clause.

Missing Writing Requirement

A waiver clause that doesn't require written waivers leaves room for arguments about oral or implied waivers - essentially defeating the purpose.

Contradicting Other Provisions

Check that the waiver clause doesn't contradict the amendment clause. Both should require written consent. Inconsistency creates ambiguity.

Related Clauses

Amendment Procedures

How to formally modify the agreement.

Entire Agreement

Prevents reliance on outside promises.

Severability

What happens if provisions are invalid.

Notices

How to formally communicate with the other party.