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When drafting an NDA, it is critical to be as specific as possible. A contract can be declared null and void if the language is unduly broad, irrational, or onerous. Agreements that are overly broad, oppressive, or attempt to contain non-confidential information will also be challenged or invalidated by the courts.

Time Limitations often range from three years from the date of disclosure to five years from the termination or expiration of the NDA.

It is important that an NDA is in place before any discussions take place, as any information shared outside an NDA may not be protected. It is not good practice to backdate an NDA as there is a risk that a party may have already shared the information disclosed, or refuse to agree to an NDA at a later date.

If your company discloses confidential information without having the NDA agreed to first, ensure that the NDA applies retroactively by setting the effective date as the date on which confidential information was first disclosed, not the date on which the agreement was signed.

Also, NDA creators have to be careful not to disclose sensitive information they want covered by the NDA before the contract is signed. Non-disclosure contracts do not cover previously known information.

It is important that an NDA is in place before any discussions take place, as any information shared outside an NDA may not be protected. It is not good practice to backdate an NDA as there is a risk that a party may have already shared the information disclosed, or refuse to agree to an NDA at a later date.

Most NDAs last for as long as the agreement states in its terms, and can be for as long as the parties agree. This is particularly important for trade secrets, which have no registration-type protections and can only be protected for as long as they are kept secret.