Governing law
Variable
Other party wants law of an alternative country to govern the agreement
This is a variable term and to your discretion whether you accept an alternative.
Yes
Jurisdiction
Variable
Other party requests that the courts of another country should have jurisdiction to hear any claims or disputes.
This is a variable term and to your discretion whether you accept an alternative.
Yes
Definition of Confidential Info
Baseline
Other party amends the definition of "Confidential Information" to include specific types of information such as e.g. computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions, technology, finances, customers, plans, product, developments, forecasts, strategies or other information etc.
The oneNDA community decided that keeping the definition of Confidential Information as broad as possible allows parties to share information without being concerned about whether the type of information shared fits the definition in the agreement. This also reduces the risk of business stakeholders inadvertently sharing information without realising that it is not covered by the NDA.
No
Marked or Identified
Deliberately excluded from oneNDA
The other party requires confidential information to be marked and identified 'Confidential'.
oneNDA's position is that the NDA should cover confidential information as widely as possible as it is disproportionately onerous for the business to put processes in place to manage such a requirement.
No
Purpose
Variable
The other party limits the definition of 'purpose'.
This is a variable term and to your discretion whether you accept an alternative. Make sure that the purpose is broad enough to include anything you may discuss / share under the NDA.
Yes
Personal data
Deliberately excluded from oneNDA
The other party includes wording covering personal data such as for example "Both parties shall adhere to the applicable data protection laws when processing the other party's personal data."
oneNDA's position is that an agreement for the sharing of personal data is subject to regulatory requirements which are not included in the NDA and that using an NDA for this purpose is not appropriate or sufficient.
No
Residuals
Deliberately excluded from oneNDA
The other party adds a residuals clause stating something along the lines of "Neither party shall be prevented or limited from using confidential information retained involuntarily and only by unaided memory to develop, making or market products or services that are or may be competitive with the products or services of the other party."
This type of clause allows the Receiver to use ‘residual’ information (e.g. information retained in unaided memory), including to develop competitive products. Residuals clauses serve to protect the Receiver from the risk that information disclosed by the Discloser prevents them from competing. However, this won’t be suitable in all circumstances (particularly due to the potential for abuse by the Receiver) and has therefore been excluded from oneNDA.
No
Sharing with representatives, agents, advisors
Baseline
The other party removes the right to share the confidential information on a need to know basis. And/or the other party disclaims liability for the acts of its personnel.
The position oneNDA takes is that parties need to be able to share confidential information with their representatives, agents and advisors who have a need-to-know basis and subject to their agreement to keep it confidential. This right needs to be retained to enable sharing with companies within a party's company group. Each party should be held responsible for the acts of its personnel in respect of the confidential information.
No
Copying & reverse engineering
Deliberately excluded from oneNDA
The other party adds that wording that allows the receiving party to copy or reverse engineer any confidential information.
oneNDA's position it is a given that this should be excluded. Neither party should be able to copy or reverse engineer confidential information as this is not aligned with the purpose of the NDA.
No
Disclosure by law or court order
Baseline
The other party removes this right, or limits the ability of the disclosing party to meet legal or regulatory obligations.
Disclosure of confidential information should be acceptable if it's required by law or regulation and therefore this right should not be removed from the NDA.
No
Return / destruction of data
Baseline
The other party states that it cannot destroy or erase the confidential information.
The obligation to destroy or erase information at the Discloser's request is fair and should remain.
No
Injunctive relief
Baseline
Other party asks to specifically exclude the right for a party to seek injunctive / equitable relief.
Equitable relief is a right given in common law and the courts will decide whether an action is appropriate. Our position is that we should not accept wording which expressly excludes the right of a party to seek relief.
No
Indemnity
Deliberately excluded from oneNDA
The other party includes an indemnity such as "The receiving party agrees to indemnify and hold harmless the disclosing party for any losses arising out of or related to the receiving party's breach of this agreement."
This is not appropriate for an NDA as it is overly onerous for the purposes of this type of agreement.
No
Liquidated damages / penalties
Deliberately excluded from oneNDA
There is a provision that allows liquidated damages or penalties for breach of the NDA.
This is not appropriate for an NDA as it is overly onerous for the purposes of this type of agreement and it is also unenforceable in certain jurisdictions.
No
Warranties & Representations
Deliberately excluded from oneNDA
The other party includes additional warranties
This is not appropriate for an NDA as it is overly onerous for the purposes of this type of agreement.
No
Liability
Deliberately excluded from oneNDA
The other party seeks to limit or or exclude liability e.g "Neither party shall be liable for the failure of any of it or any of its representatives to comply with the terms of this agreement."
The Receiver should remain liable for the acts or omissions of its Representatives.
No
Non-solicitation
Deliberately excluded from oneNDA
The other party includes a non-solicitation clause such as "Neither party shall solicit, offer work to, employ or contract with, whether as a director, member, employee consultant or independent contractor, directly or indirectly, any of the other party’s personnel during the term of this agreement or during a one year period thereafter."
This is not appropriate for an NDA as it is overly onerous for the purposes of this type of agreement.
No
Assignment
Deliberately excluded from oneNDA
The other party includes a term allowing assignment without the consent of the other party.
This is not appropriate for an NDA, especially if the Receiving party is acquired by the Discloser's competitor.
No
