How to Draft Confidentiality Obligations in NDAs Compared to Main Agreements
Key Differences Between NDAs and Confidentiality Clauses.
An NDA is not a confidentiality provision with some boilerplate tacked on
Yes, they have a lot of overlap, but they are very different contractual relationships. We need to think about them differently.
Three Tips For Confidentiality Terms in NDA's
Here are three reasons why:
- Relationship context. Most companies sign NDAs as part of preliminary discussions. There is no deal yet. The confidentiality provisions are part of a much broader ongoing commercial relationship. What worked for initial discussions may need adjusting for the more important deal.
- The typical NDA restricts the recipient from sharing or using except for a limited purpose. The most common purpose is to evaluate a potential transaction. That purpose doesn’t work when doing a deal for that transaction. Our confidentiality provisions in other agreements need to consider that different scope.
- I typically see NDA obligations survive for two to five years and indefinitely for trade secrets. But most broader agreements have confidentiality obligations survive without timelimits.
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