Top Tips for NDAs

Gabrielle

28 July 2023

Top Tips For Reviewing Non-Disclosure Agreements

Non-disclosure agreements (NDAs) (aka confidentiality agreements or CDAs) play a crucial role in safeguarding valuable inventions and confidential information. As your business grows and you explore new opportunities, you’ll likely encounter situations where NDAs are required before engaging in discussions with potential partners or collaborators.

Here are 10 tips to help ensure your NDAs protect your interests:

Parties: The purpose of an NDA is to limit indiscriminate disclosure of information, so check that the correct parties are listed (e.g., company vs individual employees).
Information Flow: NDAs can be either one-way or mutual (where both parties are disclosing/receiving confidential information). If you need your information to be treated as confidential, make sure this is reflected in the NDA.
Defining the Confidential Information: Carefully review the definition of confidential information to ensure it captures the information you will be sharing and/or receiving. Beware of provisions requiring you to follow up with written confirmation or to mark information as “confidential”, as these steps may easily be overlooked.
Exclusions: Be mindful of your legal obligations, and ensure any exclusions are reasonable and allow disclosures where required by law.
Permitted Use: NDAs restrict both unauthorised disclosure and use of confidential information so make sure you specify why the parties are exchanging confidential information (i.e., the purpose) and tie this to the permitted use.
Term: The “Term” of the NDA will generally reflect the period of information sharing, although confidentiality obligations will generally extend beyond this. Make sure the overall term of the confidentiality obligations is suitable for the type of information that will be shared.
Return/Destruction: The NDA should set out what happens to the confidential information at the end of the term, including any copies to be retained for audit or compliance purposes.
Governing Law and Venue: It is important to be aware of which laws – and courts – will govern the NDA, especially for international arrangements.
Additional Clauses: While NDAs will typically include some general provisions setting out the parties’ rights and obligations, beware of additional clauses such as extensive representations, warranties, non-competes, indemnities, IP licences or assignments.
Signatories: Make sure that signatories to the NDA have authority to sign the agreement.

We hope you find these tips helpful!

If you need assistance with reviewing NDAs, or advice on commercial law, IP commercialisation or R&D contracting, please don’t hesitate to contact us.

At Hirsch Legal, we offer a range of legal services to support your business – taking care of the legal leg-work, so you can focus on innovation.

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