Non-disclosure agreement (NDA)

A confidentiality agreement, also known as a non-disclosure agreement (NDA), is a contract under which one or more parties undertake to restrict the disclosure of information provided to them. It can support the protection of trade secrets, including confidential know-how. Contractual confidentiality and statutory trade secret protection have distinct requirements.

What should a confidentiality agreement cover?

1. The parties: identify the individuals or organisations bound by the agreement and the permitted recipients.
2. The information: define the material to be protected with sufficient precision, including oral disclosures where relevant.
3. Duration: distinguish the disclosure period from the continuing confidentiality obligation.
4. Permitted use and safeguards: specify why information may be used, the restrictions on disclosure and the security measures required.
5. Exceptions: address applicable exclusions and legally required disclosures, while respecting mandatory rules and rights.
6. Breach and remedies: address the consequences of non-compliance. Damages and injunctions remain subject to the applicable legal and procedural requirements.
7. Governing law and jurisdiction: identify the law governing the agreement and the forum for disputes.

Drafting an NDA with trade secret protection in mind

Precise drafting helps the parties understand their obligations and preserve evidence of what was agreed. Advice from trade secret litigation counsel can connect the contract with operational safeguards and the evidence needed if a dispute arises.

Our guide to drafting NDAs and protecting trade secrets under French law explains the clauses, reasonable protective steps, disclosure records and remedies for breach.

Frequently asked questions

How long should an NDA last?

The period should reflect the information, its useful life and the applicable rules. Distinguish the exchange of information from the duration of the confidentiality obligation and address protection after the relationship ends. A standard period is not appropriate for every trade secret.

What can be done if an NDA is breached?

A contractual claim may be available. Where the information also qualifies as a trade secret, the French Commercial Code provides a separate basis for protection. Depending on the requirements for each remedy, proceedings may seek to stop misuse, address documents containing the secret or recover loss. Prompt, lawful preservation of evidence is essential.

Is signing an NDA sufficient to protect a trade secret?

No. It contributes to reasonable protective measures but should be supported by technical and organisational safeguards: identifying sensitive information, restricting access, marking documents and keeping relevant records.

Source: French Commercial Code, Articles L. 151-1 et seq.

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Dhenne Avocats assists with confidentiality agreements, protection reviews and trade secret litigation. Discuss a confidentiality issue with the firm.

This glossary entry provides general information and is not advice on an individual matter.