Non-Disclosure Agreement (Two Party Disclosure)

Businesses often need to exchange proprietary, commercial or sensitive information while keeping control over how it is used. This Non-Disclosure Agreement, also known as an NDA or Confidentiality Agreement, is designed for two-way disclosure where both parties will share confidential information for agreed purposes.

It is suitable where each party may disclose and receive confidential information and both need confidentiality protections. A single party NDA should be used where only one party will be disclosing confidential information.

Mutual NDA for two-way confidential information sharing

This agreement helps both parties control:

• what confidential information is shared;
• the purposes for which each recipient may use it;
• who the information may be disclosed to; and
• what happens to the information when the agreement ends.

Each party must also obtain similar confidentiality undertakings from relevant employees and third parties, such as sub-contractors, before making any further disclosure.

Cloud storage and control of confidential information

Optional wording allows confidential information to be stored in the cloud using a data storage provider, but only with the other party’s agreement.

Cloud storage may be a negotiation point because it involves further disclosure and reduces the disclosing party’s control over the information.

The template also deals with return or erasure of confidential information at the end of the agreement, including where full erasure may not be possible for technical or legal reasons.

Disclosure controls and confidentiality exceptions

The NDA covers key confidentiality controls and exceptions, including:

• permitted disclosure to authorised persons;
• mandatory disclosure, such as disclosure required by law;
• exceptions to confidentiality, including information entering the public domain through no fault of the recipient;
• proprietary rights in the confidential information; and
• enforcement and indemnity.

Optional personal data clauses

Optional clauses are included where the confidential information contains a small amount of non-sensitive personal data. These cover:

• controller-to-controller data sharing; and
• controller-to-processor processing, where the recipient processes personal data on the disclosing party’s instructions.

Where larger amounts of personal data or higher-risk personal data are involved, a dedicated data sharing agreement or data processing agreement may be preferable alongside the NDA.

If cloud storage is used, the recipient will be appointing a processor in the data protection context and must have an appropriate agreement with the data storage provider.

The data protection clauses do not allow personal data transfers outside the UK, or optionally the EEA, which should be considered if cloud storage is proposed.

Non-Disclosure Agreement (Two Party Disclosure) is part of Business . Just £38.50 + VAT provides unlimited downloads from Business for 1 year.