Return or Destruction Clause Emails

Dear [Name], Thank you for sending over the NDA. We have reviewed the return or destruction provisions in Section [X] and would like to propose a modification to address our compliance requirements. As currently drafted, the clause requires complete destruction or return of all Confidential Information upon termination or request. While we understand and respect the intent behind this provision, our company is subject to [regulatory framework/legal requirements] that mandate retention of certain business records for [X years]. We propose adding the following exception: "Notwithstanding the foregoing, the Receiving Party may retain copies of Confidential Information (i) to the extent required by applicable law, regulation, or professional standards, or (ii) in accordance with its standard document retention and archival policies, provided that such retained information remains subject to the confidentiality obligations of this Agreement for so long as it is retained." This approach allows us to comply with our legal obligations while ensuring that any retained information continues to be protected under the NDA. This is a standard exception in NDAs we execute with similarly situated counterparties. Please let me know if you have any questions or would like to discuss further. Best regards, [Your Name]

Dear [Name], Following up on our discussion regarding the NDA, I wanted to address the return or destruction provisions in more detail. Our IT infrastructure includes automated backup and disaster recovery systems that capture data across our network on a regular basis. Requiring us to locate and purge specific Confidential Information from these backup archives would be technically impractical and prohibitively expensive - and in some cases, could compromise the integrity of our disaster recovery capabilities. We propose adding the following language: "The Receiving Party shall not be required to delete or destroy Confidential Information contained in (i) automatic system backups or disaster recovery archives made in the ordinary course of business, or (ii) electronic copies that cannot reasonably be located or deleted without undue burden, provided that such retained copies shall remain subject to the confidentiality obligations of this Agreement and shall not be accessed except as required for system recovery purposes." This is a widely accepted exception that recognizes the practical realities of modern IT systems while maintaining confidentiality protections. We are committed to ensuring that any incidentally retained information is not actively used and remains protected. Would you be amenable to this modification? Best regards, [Your Name]

Dear [Name], We have completed our review of the draft NDA and have one concern regarding the destruction certification timeline in Section [X]. The current draft requires certification of destruction within [5 business days] of a request. Given the distributed nature of our organization and the need to coordinate with multiple departments and potentially external parties (such as consultants or advisors who may have received Confidential Information under the permitted disclosure provisions), this timeline is not realistic. We propose extending this period to thirty (30) days, which would allow us to: - Conduct a thorough search across all relevant departments - Coordinate with any authorized third-party recipients - Properly document the destruction process - Have the appropriate officer sign the certification This extended timeline ensures we can provide an accurate and complete certification rather than a rushed one that may inadvertently omit certain copies. Please let us know if this revision is acceptable. Best regards, [Your Name]

Dear [Name], Thank you for your proposed revisions to the return or destruction clause. We have reviewed the suggested retention exceptions and have some concerns we would like to discuss. The proposed exception allowing retention "in accordance with standard document retention policies" is too broad for our comfort. Without knowing the specifics of your retention policies, this exception could effectively allow indefinite retention of our Confidential Information. We are willing to accommodate legitimate compliance and archival needs, but we need more specificity. We propose the following alternative language: "The Receiving Party may retain copies of Confidential Information solely to the extent (i) required by applicable law or regulation (with prompt written notice to the Disclosing Party identifying the specific legal requirement), or (ii) automatically captured in routine IT backups, provided that such backup copies are (a) stored securely with access limited to IT personnel for system recovery purposes only, (b) deleted in accordance with the Receiving Party's standard backup rotation schedule (not to exceed [12 months]), and (c) not accessed or used for any purpose other than system recovery." This approach addresses your legitimate concerns while providing us with assurance that retention is limited and well-defined. We are open to discussing specific modifications if there are particular requirements we have not addressed. Best regards, [Your Name]

Dear [Name], Regarding Section [X] of the draft NDA, we would like to propose a modification to the certification requirement. The current draft requires that destruction certification be signed by our [Chief Legal Officer/CEO]. While we understand the intent, this requirement creates practical challenges: 1. Senior executives at our organization are not directly involved in document management 2. Requiring their signature creates bottlenecks and delays in the certification process 3. The certification would be based on information gathered by others in any event We propose the following alternative: "Upon request, the Receiving Party shall provide written certification of destruction signed by an authorized representative with direct knowledge of or responsibility for the destruction process." This ensures you receive a meaningful certification from someone who can actually verify the destruction was completed, rather than a senior officer relying on second-hand information. Alternatively, we are amenable to a requirement that the certification be signed by "an officer or manager of the Receiving Party," which provides some seniority without mandating C-suite involvement. Please let me know your thoughts. Best regards, [Your Name]

Dear [Name], We have reviewed the draft NDA and noticed that Section [X] provides only for destruction of Confidential Information upon termination or request. We would like to modify this to give us the option of requiring return rather than destruction. There are several reasons why return may be preferable in certain circumstances: - Physical prototypes or samples that have intrinsic value - Original documents that cannot be recreated - Materials that we may wish to verify have been properly handled - Situations where we want to confirm the scope of what was shared We propose the following revision: "Upon termination of this Agreement or upon written request by the Disclosing Party, the Receiving Party shall, at the Disclosing Party's election, either (i) promptly return to the Disclosing Party all tangible materials containing Confidential Information, or (ii) destroy all such materials and provide written certification of destruction." This is a balanced approach that gives us flexibility while still allowing you to destroy materials if return is impractical (for example, for electronic copies). The election would be ours to make at the time of the request. Please confirm this revision is acceptable. Best regards, [Your Name]

Dear [Name], As we finalize the NDA, I want to address an important practical consideration regarding the return or destruction provisions. In the course of evaluating the potential [transaction/relationship], our team will necessarily create internal analyses, memoranda, notes, and other work product that references or incorporates your Confidential Information. Requiring destruction of all such work product would be burdensome and would deprive us of the benefit of our own analytical work. We propose adding a standard work product exception: "Notwithstanding the foregoing, the Receiving Party may retain (i) notes, analyses, compilations, studies, or other documents prepared by or for the Receiving Party that contain or reflect Confidential Information, and (ii) one archival copy of all Confidential Information for legal compliance purposes, provided that all such retained materials remain subject to the confidentiality and use restrictions of this Agreement for so long as retained." This is a commonly accepted exception that recognizes the practical realities of due diligence and evaluation processes. The key protection for you is that all retained materials remain fully subject to the NDA's confidentiality obligations indefinitely. I am happy to discuss if you have any concerns. Best regards, [Your Name]

Dear [Name], We have reviewed the return or destruction provisions in the draft NDA and would like to propose enhanced certification requirements to ensure we have appropriate assurance of compliance. The current draft does not include any certification requirement, which leaves us without confirmation that destruction has actually been completed. Given the sensitivity of the Confidential Information we will be sharing, we need a more robust process. We propose adding the following: "Upon written request by the Disclosing Party, the Receiving Party shall, within fifteen (15) business days, provide a written certificate signed by an officer of the Receiving Party confirming that (i) all Confidential Information in tangible form has been destroyed using methods appropriate to the sensitivity of the information (e.g., shredding for paper documents, secure deletion for electronic files), (ii) all Confidential Information shared with authorized third parties has been destroyed or returned, and (iii) specifying any Confidential Information retained pursuant to the exceptions in this section, including the legal or regulatory basis for such retention." This certification provides us with accountability and a clear record of compliance. The specificity regarding third parties is particularly important given that your Representatives may receive our information under the NDA. Please let me know if you would like to discuss these requirements. Best regards, [Your Name]