Duration clauses in NDAs

[duncan drennan]

Non-disclosure agreements normally have a duration clause followed by a perpetuity clause, something like this,

9.1 This Agreement shall commence on the date of signature by the party last signing or the of first disclosure date specified in Annexure A, whichever is the earlier, and shall endure for a period of 3 (three) years.

9.2 Notwithstanding the expiry or termination of this Agreement, the non-disclosure provisions set out in paragraph 4 shall endure in perpetuity or until such time as the Confidential Information is released into the public domain through means that do not amount to a breach of this Agreement by the Receiving Party.

I don't really understand the point of having the first clause if it is overridden by the second clause. Could anyone explain this to me?

In what cases does the first clause apply, and in what cases does the second clause apply? Does that mean that any information disclosed after three years is not governed by the agreement (i.e. a new one must be signed)?

[Dave A]

It means para 4 does not expire, so what is in para 4?

[duncan drennan]

Paragraph 4 is the actual terms and conditions of the agreement, i.e. when/who/what/how the information may be shared - its the "meat" of the agreement.

[Dave A]

The parties are always the parties. The property is always the property.

Does para 4 include options for recourse/consequences of breach or is that dealt with elsewhere?

[duncan drennan]

Maybe this will help, here are the section titles:

1. THE PARTIES

2. INTRODUCTION

3. INTERPRETATION

4. RESTRICTIONS ON DISCLOSURE AND USE OF THE CONFIDENTIAL INFORMATION

5. TITLE

6. STANDARD OF CARE

7. RETURN OF INFORMATION

8. EXCLUDED INFORMATION

9. DURATION

10. GOVERNING LAW

11. NOTICES AND DOMICILIA

12. WHOLE AGREEMENT

13. VARIATION

14. RELAXATION

It is a very nice NDA document (I actually want to ask them who did it for them and get a copy for my own use), I'm just trying to figure out why the duration clause is structured as it is. Effectively all confidential info remains confidential forever (9.2), are all the other sections null and void after the time in 9.1?