Every NDA from Send NDA covers confidentiality: what counts as confidential, who may see it, and what happens when it leaks. Four clauses are optional. They're off by default, and each one you tick adds wording to the contract. Nothing else changes.
Non-solicitation and non-use
Confidentiality stops the Receiving Party from telling others. This clause also stops them from using what they learned. It adds an article with these limbs:
- No use outside the purpose, for as long as the information stays confidential.
- No product built on it. Until the end of the term and the confidentiality period after it, they may not "use the Confidential Information to develop, market or provide a product, service or venture".
- No poaching, during the term and for 12 months after it: no soliciting a customer, supplier or employee they found out about through your information. General advertising and approaches they didn't invite stay allowed.
The poaching limb is left out when the Receiving Party is a person rather than a company, and the article is then headed Non-Use instead of Non-Use and Non-Solicitation. Where the other side is a person in California, Washington, North Dakota or Oklahoma, it comes out too, along with non-circumvention: those four states hold a person to no restraint on their trade. Under Indian law the poaching limb runs during the term only, because an Indian court enforces no restraint past it. Where either side is in Denmark or Norway, employees come out of the limb and customers and suppliers stay.
It's not a non-compete. The article ends by saying so:
Nothing in this Agreement restricts either Party from carrying on any business or activity, including in competition with the other Party, provided it does so without use of the other Party's Confidential Information …
No non-compete is on offer. A broad non-compete is unenforceable in several places, California among them, so the template leaves it out.
Non-circumvent
For the talks where your value is who you know. If you introduce the Receiving Party to a person or business in connection with the purpose, they may not do a deal with that contact that bypasses you, without your written consent. It runs for 12 months from the introduction or until the end of the term, whichever is later.
Two exceptions: a contact they can show they already had a relationship with, and one they reach independently of your introduction.
Penalty for a breach
A fixed sum per breach, on top of any damages, so the Disclosing Party doesn't first have to prove what the leak cost them. We offer it only where the law gives it effect, and in the shape that law asks for: the clause derogates from articles it names, so a legal system needs wording of its own before it can carry one. The form lets you tick it when the country you send from is one of them, and it falls away against a recipient who signs as a consumer.
The sum is graded per clause and capped. A daily amount runs on top of it, but only after you have given the other side written notice to stop, and only while they keep using or disclosing the information or have not returned it: a daily sum for something the other side cannot undo is what makes a court reduce the whole penalty. Nothing is payable for a breach they did not cause. A court may always reduce a penalty it finds excessive, whatever the agreement says, and the agreement does not pretend otherwise.
| Breach of | Penalty per breach |
|---|---|
| Confidentiality, and the no-use and no-product limbs | EUR 10.000 |
| The no-poaching limb | EUR 7.500 |
| Non-circumvent | EUR 5.000 |
The daily amount is EUR 1.000, and the total is capped at EUR 100.000. A row only applies when its clause is in the contract, and any penalty paid is set off against damages for the same breach.
Where a party bound as Receiving Party signs as a person rather than for a company, every amount halves: EUR 5.000, EUR 3.750 and EUR 2.500 per breach, EUR 500 a day, capped at EUR 50.000. A sum set for a company can be out of proportion for a person, a court can reduce a penalty where fairness clearly demands it, and a sum a court leaves standing is the only one that deters.
Group companies
By default a company that receives your information may share it only with its own directors, officers, employees, contractors and professional advisers who need to know it. Allow group companies and that widens to its Affiliates: entities that control it, are controlled by it, or are under common control with it, and their people.
Leave it off when the information would be sensitive in the hands of a sister company. It makes no difference when the Receiving Party is a person.
What every NDA already has
You don't need a clause for these; they're in every agreement: a definition of confidential information that covers the fact you're talking at all, the usual exclusions, notice of a leak within two business days, no reverse engineering except where the law won't let that be restricted, return or destruction on request, the right to ask a court for an injunction, and a paragraph on AI tools. How long it runs covers the term.
Three more are there for reasons nobody negotiates. Nobody can be gagged from reporting a suspected breach of law to a regulator, blowing the whistle, or discussing discrimination, harassment or a wage violation they experienced or witnessed, and nobody has to tell the other side they did it. A notice states the immunity US law gives an individual who hands a trade secret to a government official or files it under seal: leaving it out would cost a sender who sues an American freelancer their exemplary damages and legal fees. And nobody outside the two parties, their successors and their heirs can enforce any of it, so a group company named in the agreement can't sue on it.
These summaries help you choose. The contract's own wording is what binds, and Send NDA provides a template, not legal advice.