Top Tips for Confidentiality & Non-Disclosure Agreements

The following are some of the key considerations to think about when entering into an NDA or confidentiality agreement:

• What is confidential information? - The definition should be broad enough to catch all the categories of confidential information being disclosed.
• Permitted Use – What purpose can the confidential information be used for? The agreement should specify in which circumstances and for what purpose the recipient can use the confidential information.
• One way or mutual? - The agreement should cater for situations where:
  • only one party intends to disclose confidential information
  • both parties intend to disclose confidential information
• Duration - The agreement should set out the duration in which the agreement and confidentiality obligations will remain in effect.
• Intellectual Property Rights - It is not uncommon to find provisions within an NDA that seek to assert ownership over intellectual property rights that may arise due to information sharing. However, such provisions may not reflect what you want to happen to those rights, and therefore, any provisions relating to IP should be carefully considered, or the risk is that you may be inadvertently assigning such rights to the other party.
• Return of confidential information - The agreement should set out what will happen to the confidential information if the project or transaction does not proceed (i.e., the confidential information will be returned or destroyed).
• Remedies - The agreement should set out the specific remedies available for a breach of the agreement (i.e., damages or an injunction).
• What law applies to the agreement? - The governing law and court jurisdiction that will apply to the agreement in case of any dispute should be stipulated.

The Commercial Team at Myerson can help protect your business by advising on, drafting and negotiating NDAs and confidentiality agreements to ensure that they provide adequate protection to your business by ensuring that they are both legally binding and tailored to the specific circumstances.

If you have any questions or would like more information, please get in touch with our Commercial Solicitors, who would be happy to assist.