Before you show a prospective partner your pricing, your client list or your designs, have the agreement that protects them drafted or checked. A fixed price agreed in writing before work starts, and 10% off for subscribers.
A prospective partner, investor, supplier or buyer wants to see how your business works. You want to show them enough to win the deal and no more. A confidentiality agreement, usually called an NDA, turns that expectation into a contractual duty: it names the information, limits what the other side may use it for, sets how long the duty lasts and says what happens if it is broken.
The general law of confidence gives some protection without any agreement. To rely on it you have to show that the information was confidential, that it was shared in circumstances which made the duty plain, and that it was misused. An NDA puts all three in writing before the meeting, so there is nothing left to argue about what was implied.
It has to be signed first. An agreement that arrives after the pitch protects nothing that was said at the pitch.
Mutual or one-way, with the parties, the purpose and the duration written for the conversation you are about to have.
What each clause does, and which ones the other side may ask to change.
If the NDA came from them, your copy back with the changes to ask for before you sign.
The duties and the remedies in an NDA run in whichever direction the document says, whoever ends up doing the sharing. Sign a one-way agreement drafted for the other side when you are the one handing over pricing or designs, and your material sits outside it.
You are briefing a supplier, a freelancer or a possible buyer, and they show you nothing sensitive in return. A one-way agreement in your favour keeps every obligation on them and keeps the document short.
An investor's data room, a customer's systems, a supplier's cost base. Signing is normal. Read what you take on, because an NDA you sign can restrict what you do later with knowledge you already had, and the exclusions are what stop that.
Two businesses exploring a partnership, a joint bid, a sale or a supply arrangement where each side opens its books. A mutual NDA gives both the same protection, and asking for one is an ordinary request.
In England and Wales a promise is binding only if something is given for it. In a mutual NDA each side's promise does that job. A one-way NDA states the disclosure itself as the return, or is signed as a deed. Scots law has no such requirement, which is one reason the governing law clause matters.
Too narrow, and the material you care about falls outside it. Too wide, and a definition catching everything ever mentioned becomes hard to enforce, because you cannot show what was secret. A strong definition names the categories in play, such as pricing, client lists, designs, source code, financial figures and plans, and covers information given in a meeting or on a call as well as in documents.
Information already public, already known to the recipient, received from someone free to share it, or developed independently without using yours, plus anything a court, a regulator or the law requires to be disclosed. Without these the recipient can be in breach for repeating what was in the trade press, which is why a sensible counterparty will ask for them.
What the recipient may use the information for. “To evaluate a possible supply arrangement between the parties” is a purpose. “For business purposes” lets them use it for almost anything. Tie it to the deal being discussed, and say who on their side may see it: employees and advisers who need to know, bound by the same duty.
When the duty starts, how long it runs and whether it survives the end of the talks. A fixed term of a few years suits commercial information that goes stale; trade secrets and source code can be protected for as long as they stay secret. An agreement that ends when negotiations end protects nothing after the point where the material has been seen.
What happens to documents, files and copies when the talks end or either side asks. A workable clause allows for automatic back-ups and for copies kept to meet a legal or regulatory duty, keeps those copies under the same duty of confidence, and lets the discloser ask for written confirmation that everything else has gone.
Loss from a breach of confidence is hard to put a figure on, so the clause that matters is the acknowledgement that damages may not be enough and an injunction may be needed to stop further use. A fixed sum payable on breach is enforceable only if it protects a legitimate interest and is not out of all proportion to it. Otherwise a court can refuse it as a penalty.
An NDA protects confidences. It does not transfer ownership, stop someone building something similar from scratch, or keep your staff. Work out what would go wrong, then pick the document that deals with it. NDAs explained goes through the checks to run on an agreement someone has sent you.
| The worry | What an NDA does | What deals with it |
|---|---|---|
| They will use our pricing or plans for their own ends | Covers it, if the definition and purpose are tight | An NDA |
| They will keep the designs or code we pay them to create | Nothing. Confidentiality is a different question from ownership | A written assignment of intellectual property in the main contract |
| They will hire our staff or approach our clients | Nothing | A non-solicitation clause, limited to what is reasonable |
| They will build a competing product from scratch | Little. Independent development is generally allowed | A decision about what to share, and when |
| A departing employee or contractor will take information | Some protection, if they signed one | Confidentiality terms in their employment or consultancy agreement |
| Someone will report wrongdoing | Cannot stop it. A clause that tries is void to that extent | No document should |
Either way the price is fixed in writing against a defined scope before work starts, and nothing is chargeable until you approve it.
Tell us who you are meeting, what you plan to show them and why. We draft a mutual or one-way agreement around that purpose, with a note on every clause, ready for you to send. If you will be sharing with several parties for the same reason, one agreement can be written to be reused.
Get a fixed price for drafting →Send the NDA you have been asked to sign and say whether you are the one sharing or receiving, because that decides which half of it matters. You get a marked-up copy with the changes to ask for. A single NDA can also go through our contract review, a fixed £249 +VAT with the marked-up copy back in 5 working days.
Send us the NDA →The rate commonly quoted for a commercial solicitor, with the total known only after the work.
For subscribers, on this and every other fixed-fee job.
To enforce an NDA you have to show that specific information was confidential, that it came from you, and that the other side used or disclosed it outside the permitted purpose. Speed matters more than the size of the claim, because the practical remedy is an injunction to stop further use. Keep a dated note of what you shared, with whom and when, and mark documents as confidential when you send them. That record is what a claim is built on.
Applications to court and anything already contentious are reserved work. They go to AD Solicitors (SRA no. 8011228), and you are told that at the scoping stage, before you have spent anything. Work carried out by AD Solicitors carries the full SRA framework, including the compensation fund and the Legal Ombudsman. Work we carry out ourselves does not.
The law of confidence in Scotland and Northern Ireland reaches similar results, but the courts are separate and Scots contract law differs on how an agreement is formed. An NDA names the law that governs it and the courts that hear any dispute. If the other party is in Scotland, Northern Ireland or abroad, say so when you send the details and the governing law and jurisdiction clauses will be written for it.
Buzz Legal handles contracts, terms of trade, employment paperwork and dispute preparation. Court work, and the other activities reserved by law, are carried out by AD Solicitors, authorised and regulated by the Solicitors Regulation Authority (no. 8011228). How this works, in full. For advice on your own situation, send us the details.
It is a fixed price agreed in writing before work starts, set against a written scope, and nothing is chargeable until you approve it. What sets the figure is whether we are drafting or reviewing, whether it is mutual or one-way, and how much of the agreement has to be written around your deal. For comparison, the rate commonly quoted for a commercial solicitor is £200 to £350 +VAT an hour, with the total known only afterwards. If you have been sent a single NDA to sign, our contract review covers it at a fixed £249 +VAT. Subscribers get 10% off any fixed-fee job.
It depends on who is sharing. If only you are handing over information, for example briefing a supplier or a freelancer, a one-way agreement in your favour is enough and keeps the obligations on them. If they are the only one sharing, expect them to send a one-way agreement in their favour, and read the restrictions it puts on you. If both sides will open their books, as in a partnership, a joint bid or a sale, you want a mutual agreement. Signing a one-way NDA drafted for the other side when you are the one sharing leaves your information unprotected.
For as long as the information stays sensitive. A fixed term of a few years suits commercial information such as pricing and plans, which goes stale. Trade secrets and source code can be protected for as long as they remain secret. The duty should also survive the end of the talks, because the point of the agreement is to protect what was seen during them. An unrealistically long term for ordinary information invites the argument that the restriction is unreasonable, so the duration is set against what you are sharing and not copied from a template.
No. Under the Employment Rights Act 1996, a term in an agreement that tries to stop a worker making a protected disclosure is void to that extent. Reporting a crime, co-operating with the police and giving information to a regulator are also outside what an NDA can lawfully prevent. NDAs exist to protect commercial confidences such as pricing, methods, client lists and product plans. When we draft one, the carve-out for protected disclosures and reports to regulators is written in, because leaving it out casts doubt over the rest of the agreement.
Usually not. A standalone NDA belongs to the early stage, before there is a main contract, while you are still deciding whether to work together. Once a full agreement is signed, confidentiality sits better as a clause inside it. Two documents mean two definitions of confidential information, and sooner or later someone has to work out which one wins. When the main contract is signed, it should say whether it replaces the NDA or sits alongside it. Employment and consultancy contracts should carry their own confidentiality terms for the same reason.
Who the other side is, what you plan to show them and why, or attach the NDA they have sent you. You get back a fixed price against a defined scope before any work starts. See the privacy policy for how we use your details.
Drafted for your deal or read and marked up, at a fixed price agreed in writing before work starts.
