Key issues to consider when negotiating an NDA include:
- Should the NDA be mutual or one-way?
- Has the information to be treated as confidential been adequately identified and defined? Does it include information disclosed verbally, whether on calls or in meetings?
- What information is not confidential, e.g. because it is already in the possession of the receiving party, or the receiving party acquires it independently from the disclosing party?
- Does the NDA need to extend to information disclosed before the NDA is signed?
- Has the purpose for which the receiving party may use the confidential information been adequately identified and defined?
- What security measures does the receiving party need to adopt for the confidential information?
- What is the duration of the NDA? Can it be terminated? How long do the confidentiality obligations themselves continue?
- Does the receiving party need to disclose confidential information to third parties, e.g. contractors, other group companies, professional advisers etc.? Is the receiving party directly responsible for any disclosure by those third parties?
- What are the receiving party’s obligations in terms of returning/destroying confidential information? Is the receiving party entitled to retain a copy of the confidential information, whether for legal/regulatory reasons or otherwise?