How to Approach Warranties in Non-Disclosure Agreements

Be careful what warranties you include in your non-disclosure agreement.

The most common warranty that I see is the accuracy disclaimer. It says that the discloser does not warrant that the information is accurate or complete and prohibits the recipient from relying on it. This warranty is rarely an issue for anyone.

I also see warranties that the discloser has the right to share the information it provides. This language gives the recipient a clear claim for breach of contract if the discloser shares something that it shouldn't have or that infringes a third party’s IP.

When the relationship includes complex technology or data exchange, I also may include warranty compliance with applicable laws. My goal with that obligation is to capture the complex web of privacy, export, and similar data restrictions.

But that’s usually it. I prefer to keep the NDA’s warranties very limited. After all, an NDA is a preliminary document in a minimal relationship. More detailed and robust warranties should go in the main agreement if that is signed.

What's your approach to NDA warranties? I'm very curious about what you think and if there are different approaches in your industry or jurisdiction.