non-disclosure
Mutual Non-Disclosure Agreement for future information
<p>I am responsible for implementing a software platform provided by a US company. I work in an international company having HQ in Germany, but also offices in Eastern-Europe (within EU).</p>

<p>My security department asked for a security assessment for the platform and provided me with a few dozens questions to be answered. I conveyed them to the provider and they told me that they can only release the answer if we sign a Mutual Non-Disclosure Agreement.</p>

<p>This is where things become trickier because there is a contradiction between this MNDA and our legal department recommendations.</p>

<p>Our legal department recommended the following (emphasis mine):</p>

<blockquote>
  <p>The non-disclosure agreements are strongly related and accessories to
  the main legal relationship between the parties. Their existence is
  justified by the sensitive nature of the information disclosed by the
  parties during said relationship. Therefore, <strong>we strongly recommend
  limiting the non-disclosure agreement to the information disclosed
  during your project.</strong></p>
</blockquote>

<p>The MNDA stipulates the following (amonng many others, but this is the main issue):</p>

<blockquote>
  <p>Confidential Information shall mean, subject to the exceptions set
  forth in Section 2 hereof, any and all technical and non-technical
  information provided, disclosed, or made available by either Party or
  their respective agents to the other Party, whether before, on, or
  after the date of this Agreement, which includes, without limitation:
  (a) any information or documents provided under or in connection with
  any current <strong>or future agreement between the Parties;</strong></p>
</blockquote>

<p>Shortly put, the provider want the MNDA to cover all future interaction (pragmatic approach, less papers to be signed in the future), while our legal department has a more cautious approach (MNDA should cover strictly the provided security assessment document).</p>

<p>I have no legal expertise, but I am curious how are these type of contractions solved in practice. Also, is there an explanation for such a difference of approach in relation to MNDAs? (US vs. Europe)</p>

<blockquote>
  <p>how are these type of contractions solved in practice. </p>
</blockquote>

<p>The wording or language of the contract is decisive toward ascertaining whether it has been breached. That language is supposed to reflect the parties' <em>intent</em> at the time the contract was entered.</p>

<p>It is only in the event of language confusion (provided that the <a href="https://en.wikipedia.org/wiki/Contra_proferentem" rel="nofollow noreferrer">doctrine of <em>contra proferentem</em></a> is inapplicable or futile) that <em>extrinsic evidence</em> would be assessed in order to identify the parties' intent, and consequently their duties and obligations under the contract.</p>

<p>Once a breach of contract has been identified, the next issue consists of assessing the losses the injured party incurred as a result of that breach. If no losses arise from the breach, pleading and proving a claim of breach of contract is inconsequential.</p>

<blockquote>
  <p>is there an explanation for such a difference of approach in relation to MNDAs? (US vs. Europe)</p>
</blockquote>

<p>It is not that US and Europe mandate different approaches to NDAs or to contracts in general. The terms and scope of contracts are largely a matter of each party's purposes and the ensuing negotiations toward reaching a mutual agreement.</p>

<p>You might want to inquire of your counterparty whether encompassing "future agreements" in that clause truly serves any concrete purpose. If it does not, then keeping that boilerplate in the contract seems pointless.</p>

<p>Furthermore, many contracts contain a clause stating that the contract at issue "<em>supersedes any prior and contemporaneous agreements between the parties</em>". Accordingly, there is no impediment for a subsequent contract to render null and void the constraints regarding "<em>future agreement[s]</em>" that your counterparty seeks in the contract you currently analyze.</p>

<h2>Negotiation and Compromise</h2>

<p>Basically, you do what they want, they do what you want or you both walk away from the deal. Where parties approach a negotiation with incompatible positions, these are really the only outcomes.</p>

<p>Businesses negotiate this type of agreement all the time. Either you work out some wording that both can live with or you walk away.</p>
