Practical tips on negotiating and drafting NDAs Ken Wilkinson

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Issues to consider when putting an NDA in place

• Is a formal NDA always necessary?

• Is an NDA always enforceable?

• Main remedy injunction – little use if information already in public domain – no legal remedy can make the information secret again

• Damages for breach of contract not always adequate

• Proving a breach of confidentiality often difficult

• Commercial information once disclosed will inevitably be taken into account by competitors

• Other considerations (e.g. Data Protection, Public Authorities/Freedom of Information Act)

• Need procedures and contingency plans in place as well as an NDA

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Key provisions to consider for recipients of confidential information when negotiating an NDA

1. Carefully define “confidential information”

2. Make sure you can return the information

3. Make sure you can keep track of the information

4. Avoid/limit liability for third party breaches

5. Limit the duration of the obligations

6. Deal with mandatory disclosure requirements

7. Don’t indemnify for breach

Practical tips on negotiating and drafting NDAs

For more informationplease contact:

Ken Wilkinson

+44 (0) 207 067 3807ken.wilkinson@olswang.com