Exchange of confidential information under a Non-Disclosure Agreement (or Confidentiality Agreement)

In most standard Non-disclosure Agreements (NDAs) the clause relating to the period for which the confidences should be kept between the parties (or third parties) will refer to a definite period of time, for example 5 years.   

The period for which confidences are to be kept will run from either the date of the disclosure under the agreement, or from the termination date.  The period hit upon is often a matter of instruction from the client, sometimes the client places such importance on the confidential information (invention, trade secrets, design, all manner of commercially or otherwise inherently sensitive information) that they would wish the confidences to be kept, if at all possible, forever. 

In the University sector, given that there is a constant commitment to wide dissemination of knowledge or information through academic publication and other channels, shorter time periods of 5 years are often agreed, in light of the fact that so much information by its very nature ends up rapidly in the public domain. 

A typical clause for general commercial use, or for research agreements would read:

‘The provisions of this clause [the clause setting out the confidences that should be kept – e.g. a large category including know-how, trade secrets, operations, plans, processes, copyrights etc] shall survive any termination of this agreement for a period of 5 years from termination.’ 

Some NDAs refer to a window of time, in which the confidences are exchanged, for example for 1 year running from the start date of the agreement, and so the only confidential information caught in the net is that exchanged in a defined period.  In such cases, you need to carefully ensure that the confidential information is also (in another clause in the agreement!) to be preserved for an unlimited time, or for the temporal period of 5 years for example.  

The above issues are under current review in regard to the precedents in current use.  However, simply because the product of Research or information is often aimed to be in the public domain as quickly as possible, and widely disseminated, it does not mean that there are confidences that should be kept and for long periods of time.