In the development of a non-disclosure agreement, it is essential to ensure that the interests of both parties are properly protected, including the necessary provisions in a clearly defined manner and excluding any unsusured provision. Even when an NDA requires parties to return or destroy confidential information, it is often difficult for a party to verify whether this actually happened. Therefore, it should be recognized that entry into an NOA alone does not guarantee that a recipient party will not retain or use confidential information unwarrantedly. The main way for a party to impose an NOA is an injunction and/or a claim for damages; However, once a recipient has disclosed or failed to properly use disclosed information, an injunction may have no value and successfully show that damage can be difficult and tedious. The party that discloses most of the information may want to insert a language that transfers the burden of proof of a breach of the agreement to the recipient in order to assist in the implementation of the agreement. In addition, each party should carefully consider the choice of the legal provision in an NOA, since some jurisdictions may be more favourable than others with respect to certain clauses. Confidentiality period. The NDA has or must have a provision setting out the period during which the parties are required to keep the information confidential. Here too, the context determines the “correct” answer for you.
I think the information should be confidential for the life of the NDA and a few years later. A new trend has shifted to a continuous period of confidentiality. For example, two years after the disclosure date. If your company tracks disclosure data and the date of receipt of all confidential information entering your business, you should reassess your business priorities or workforce. Another trend is “X” years from the validity date of the NDA, where “X” tends to be two or three years. Considering a typical business relationship, it is likely that the parties to the NOA will not transmit strictly confidential information from the outset, but over time, as the relationship develops, the type of confidential information may be more sensitive. In this scenario, when the sensitivity and value of confidential data increases, the duration of protection decreases. This might be acceptable to cover a very short sales cycle, but it also seems to be a deterrent to the exchange of useful information. The parties sign a confidentiality agreement or NOA to protect the confidentiality of discussions with other parties.