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Frequently Asked Questions

What happens when an NDA is breached and how does a Waiver of Injunctive Relief come into play?

When a Non-Disclosure Agreement (NDA) is breached, the disclosing party often seeks legal recourse to prevent further disclosure of the confidential information and to recover damages. One of the most common defenses in such a situation is to obtain an injunction from the court. This legal remedy, known as injunctive relief, can temporarily or permanently prohibit the receiving party from disclosing any of the confidential information until the court case is resolved. This is often a primary protection for the disclosing party, as filing a suit for monetary damages alone may not be sufficient. However, it's important to note that some NDAs include a Waiver of Injunctive Relief. This clause essentially means that the disclosing party agrees not to seek an injunction in the event of a breach. This can significantly limit the disclosing party's options for recourse, as they may be left with only the option to seek monetary damages. Furthermore, some NDAs also include a disclaimer of consequential damages, which disclaims any consequential damages if a breach occurs. This can further limit the disclosing party's recourse, as they are often most likely to seek consequential damages in a breach of NDA. If such limitations were agreed to, it becomes more difficult to recover damages for a breach of confidentiality.
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