Commercial and services contracts · 03
Non-disclosure agreement — mutual or one-way
Protects information exchanged while two parties work out whether to do business, and afterwards.
Protects information exchanged while two parties work out whether to do business, and afterwards.
A definition of confidential information that includes the fact of the discussions themselves; the permitted purpose; permitted recipients and their back-to-back obligations; the standard carve-outs — already known, independently developed, public through no breach, compelled by law or a regulator; a return-or-destroy obligation with an exception for backups and records the recipient must keep by law; the duration after termination; and remedies.
An NDA with no permitted-purpose clause protects less than people think: it restrains disclosure but not use. A perpetual confidentiality period is often unenforceable and almost always unnecessary — three to five years from the last disclosure is the commercial norm, longer only for genuine trade secrets. And an NDA is not a POPIA operator agreement; where personal information will be exchanged it does not do that job.
The law it sits under
What governs this instrument.
A confidentiality agreement is a common-law contract, but where it covers personal information it also engages POPIA — confidentiality and lawful processing are different obligations, and an NDA does not satisfy section 21. The practical drafting question is the definition of confidential information and the survival period, because an indefinite obligation over an undefined class is rarely enforced as drafted.
Related pages, tools and documents
Where this instrument sits in the wider set, and the engagement that produces it.
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