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The following paragraph was included in a Mutual Non-Disclosure Agreement template between two technology companies.

The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction."

I was wondering what the implications of this paragraph are in the event of a breach.

  • Please spell out acronyms for clarity. I think that by MNDA you mean "Mutual Non-Disclosure Agreement" but that is not the only plausible reading of that term. – ohwilleke Sep 5 '18 at 0:03
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A court could order the breaching party to stop breaching and to pay an amount equal to the economic injury caused by the breach.

  • Thank you for your reply. In the section, does threatened mean that the disclosing party can take action if they have evidence of a breach? Or does it mean that the disclosing party can take action if they think a breach occurred? – philm Sep 4 '18 at 23:55
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    @philm it means that the disclosing party can take action if they think that a breach is imminent for some non-subjective reason. – ohwilleke Sep 5 '18 at 0:04
  • @ohwilleke Thank you for your reply. Would you be able to clarify "non-subjective"? Does this mean that the disclosing party can take action if they do not have evidence? – philm Sep 5 '18 at 0:07
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    That would mean that they need some evidence, possibly indirect or implied from communications with the third party, or from non-response to a demand not to do so, for example. – ohwilleke Sep 5 '18 at 0:08
  • "Exemplary damages" could go beyond the actual economic injury, no? – Nate Eldredge Sep 5 '18 at 4:13

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