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Franklin
Franklin, Attorney
Category: Business Law
Satisfied Customers: 653
Experience:  Clients consistently recommend my excellent service.
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Hi Franklin! Please see additional questions...

Resolved Question:

Hi Franklin! Thank you for your quick response. Please see my additional questions below:

1) Even if I have already shared information and ideas with them within the past few weeks, it's ok to have the NDA start from now?
I was told you can start the NDA from the date when the discussions first started (at beginning of document), without any dates under the signatures?

2) Would you recommend having a Liquidated Damages clause or not?

Thank you!!!
Submitted: 1 year ago.
Category: Business Law
Expert:  Franklin replied 1 year ago.
Hello, my name is XXXXX XXXXX U.S. immigration and business attorney, and I'll be happy to assist you today.

1. Yes, you can start the NDA from the date discussions started. However, the current date should be now.

So, for example, you sign the NDA today, but you state that all issues related to the matter at hand are confidential. That will cover your previous discussions as well.

2. Liquidated damages clauses are tricky, and the court will often throw them out if there's even the slightest hint that the clause is designed to punish and deter, rather than to simply recover reasonable damages. Moreover, if the liquidated damages clause is too severe, then the court might look unfavorably upon the country as a whole. Personally, I'd leave it out.
Customer: replied 1 year ago.
Hi Franklin! Thank you again. Just for clarification:

1) Can I start the agreement with the following adding the date when we first started the discussions?
Would you modify this language in anyway?

This Non-Disclosure Agreement (this “Agreement”) is made and entered into on _________ by and between…

2) In this case, can the end of the document just have signatures and names but no dates (see below)?

How would you modify the language below, since the Agreement would not be "as of the date set forth below."

IN WITNESS WHEREOF, the Recipient hereto has executed this Agreement as of the date set forth below.


“Recipient”

By:__________

Name:_______


3) Do I need to sign the NDA, or only the Recipient (as above)?

Thank you for your advice!

Expert:  Franklin replied 1 year ago.
1. This looks correct. I'd modify it like so:

This Non-Disclosure Agreement (this “Agreement”) is made and entered into on (current date) by and between (parties) regarding (the matter at hand, and previously discussed starting from (past date)).

2. Yes, but it would be better to have a date for authenticity purposes. Most contracts will usually have a date.

3. Only the recipient needs to sign.
Expert:  Franklin replied 1 year ago.
Regarding 2., the language is correct, because the agreement starts on that date, but it just refers to a past matter. The agreement is executed on the current date, but just covers a past matter as well. The past matter was not executed, only the current NDA agreement is being executed.
Customer: replied 1 year ago.
Hi Franklin,

Thank you so much for your help. :) Below is how the agreement is written from the beginning. How would you add the past date here?

This Non-Disclosure Agreement is made and entered into on___________by and between _________ on one hand, ("Disclosing Party"), and the undersigned ("Receiving Party"), on behalf of and for itself and its affiliates and related entities, with reference to the following facts:

A. Disclosing Party and Recipient are engaged in discussions related to current and future business relationships between the parties (the “Business Relationship”).
Expert:  Franklin replied 1 year ago.
No problem.

In part A. below, simply remove "current and future." The phrase will now read "Disclosing Party and Recipient are engaged in discussions related to business relationships between the parties. If you remove "current and future," business relationships will now cover everything both past, present, and future.
Customer: replied 1 year ago.
Hi Franklin! Thank you again! :) Last questions:

1) Which date would go there then? The past date or current date?

2) To be more specific, would it be ok to write:

"...are engaged in discussions related to past, current, and future business relationships..."

Thank you!!!!!!!!
Expert:  replied 1 year ago.
1) The current date, not the past date, would go in the blank. The current date is when the contract is enforceable.

2. Yes, that would be fine as well, and in fact, it's even more clear than my version.

No problem, and good luck!
Franklin, Attorney
Category: Business Law
Satisfied Customers: 653
Experience: Clients consistently recommend my excellent service.
Franklin and 8 other Business Law Specialists are ready to help you
Expert:  Franklin replied 1 year ago.
I sincerely XXXXX XXXXX your questions on JustAnswer.com. If you have any more questions, or would like to follow-up, feel free to stop by and chat. To request me in the future, simply write "Hi, Franklin" before your question.

Have a great day!
Customer: replied 1 year ago.
Hi Franklin,

Regarding an NDA (one-way), is there a difference between the two clauses below?

Which is best for the Disclosing Party?

Would you recommend any additions/revisions?

Note: This is for an NDA without a liquidated damages clause.


2.1 Remedies. Receiving Party acknowledges that the Confidential Information has unusual and extraordinary value, and that the breach of any provision of this Agreement by Receiving Party will cause Disclosing Party great and irreparable harm, for which remedies available at law are inadequate. Therefore, without the necessity of proving actual damages or posting any bond, Disclosing Party shall be entitled to injunctive and other equitable relief, including, but not limited to, specific performance, to prevent a breach, continued breach or threatened breach of this Agreement. No remedy or election hereunder shall be deemed exclusive but shall be cumulative with all other remedies available at law or in equity.

2.1 Remedies. Receiving Party acknowledges that the Confidential Information has unusual and extraordinary value, and that the breach of any provision of this Agreement by Receiving Party will cause Disclosing Party great and irreparable harm. Disclosing Party reserves its right to all legal and equitable relief, including, but not limited to, injunctive and other relief, such as specific performance, to prevent a breach, continued breach or threatened breach of this Agreement. No remedy or election hereunder shall be deemed exclusive but shall be cumulative with all other remedies available at law or in equity.

Thank you!

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