Checklist: NDA

Key issues to consider when drafting, reviewing or 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?
• 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?
• With whom may the receiving party share the confidential information, e.g. contractors, group companies, professional advisers etc.?  Is the receiving party directly responsible for any non-permitted disclosure by those third parties?
• 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?  If the NDA is terminated, how long do the confidentiality obligations themselves continue?
• What are the receiving party’s obligations in terms of returning/destroying confidential information?  Is the receiving party able to comply with an obligation to ‘delete all electronic copies’?  Is the receiving party entitled to retain a copy of the confidential information, whether for legal/regulatory reasons or otherwise?