Non-Disclosure Agreement (NDA) Ireland: Mutual or One-Way

Even without a contract, the equitable action for breach of confidence applies where information has the necessary quality of confidence and was passed on in circumstances that imposed a duty to keep it secret. The trouble is proof. Without a signed document, the discloser has to persuade a court that the other side knew the information was confidential, what it covered and what it could be used for. A non-disclosure agreement settles those three points in advance: it defines the Confidential Information, fixes the Purpose for which it may be used and says who inside the receiving business may see it.

"NDA" and "confidentiality agreement" mean the same thing, and both are ordinary contracts. Nothing is filed with the Companies Registration Office or any other register. What separates a usable NDA from a weak one is detail: a precise purpose, exclusions the receiving party has to prove, a fixed duration and a clear route to an injunction. A mutual NDA suits two companies exploring a deal on equal terms; a one-way NDA fits the inventor showing a prototype to a manufacturer. Both versions sit with the other contracts for Irish companies and sole traders.

Three layers of Irish law shape an NDA. The first is contract law: an agreement signed under hand needs consideration, so the template states that information is made available in exchange for the undertakings given, and adds a nominal payment in the one-way version, where one side makes most of the promises. The second is the European Union (Protection of Trade Secrets) Regulations 2018 (S.I. No. 188 of 2018), which implement Directive (EU) 2016/943. Under Regulation 5(2)(b), using or disclosing a trade secret in breach of a confidentiality agreement is unlawful, and the holder can ask the District, Circuit or High Court for provisional measures, injunctions, destruction of documents and damages. Regulation 9 brought these actions within section 11 of the Statute of Limitations 1957, which gives six years to sue. Information only counts as a trade secret if the holder took reasonable steps to keep it secret, and a signed NDA is the most common of those steps.

The third layer limits what an NDA can do. Section 23 of the Protected Disclosures Act 2014 makes void any provision of an agreement "in so far as it purports to prohibit or restrict the making of protected disclosures", as the revised text of section 23 of the Protected Disclosures Act 2014 published by the Law Reform Commission shows. Since the Protected Disclosures (Amendment) Act 2022, a "worker" includes shareholders, board members, volunteers and an individual who, in a work-related context, learns of wrongdoing during pre-contractual negotiations, a setting many NDAs share. Personal data shared under an NDA stays subject to the GDPR and the Data Protection Act 2018, supervised by the Data Protection Commission, and where one side is a listed issuer, Regulation (EU) No 596/2014 on market abuse also applies.

The classic trigger is a first serious meeting. A software company demoing its product to a bank or two engineering firms preparing a joint tender will each disclose prices, margins or technical detail a competitor would pay for. Sign before the meeting, not after. The template covers earlier disclosures too, but signing first removes the argument.

Due diligence raises the stakes. A buyer looking at a pub or a consultancy sees the accounts and staff costs, and where premises change hands the deal also needs the property templates for Irish landlords and tenants. Many early stage investors refuse NDAs at the pitch, so founders keep the deck general and use the NDA at due diligence.

An outside consultant or developer usually signs the one-way version, often with the optional non-solicitation clause. If the person will become an employee, the confidentiality terms belong in the contract of employment, alongside the other employment documents for Irish employers. One warning: an employer's NDA covering an allegation of discrimination, victimisation or harassment is void under section 14B of the Employment Equality Act 1998, unless the employee asked for it after written independent legal advice and it meets the formal conditions of that section, or it records a resolution reached through WRC mediation.

Clause 1 defines Confidential Information broadly: oral and visual disclosures whether marked or not, notes and analyses that reflect it, and the existence of the talks themselves. In the mutual version each party can be Disclosing Party and Receiving Party; in the one-way version, anything the Second Party hands over is expressly unprotected unless agreed in writing. Clause 2 sets the core undertakings (secrecy, use for the Purpose only, no copying beyond need, a reasonable standard of care, no reverse engineering of samples or software), and clause 3 lets the Receiving Party brief its Representatives on a need-to-know basis while making it liable for their breaches.

Mark-ups usually target the limits. Clause 4 lists five exclusions (public domain, prior possession, a third party free to disclose, independent development and written consent) and puts the burden of proof on the Receiving Party. Clause 5 handles court orders and regulators, clause 6 protects protected disclosures and reports to An Garda Síochána or other authorities, clause 7 links the agreement to the trade secrets regulations and clause 8 confirms that no licence passes and that privilege is not waived.

In a dispute, the exit clauses carry most of the value. Clause 9 requires return or destruction within 10 Business Days of a request, and written confirmation on request. Clause 10 lets either side end the agreement on 30 days' notice while the duty of confidence runs on for the years you choose, or without time limit, and trade secrets stay protected for as long as they remain secret. Clause 11 preserves injunctions and an account of profits, clause 12 adapts to whether personal data is shared and clause 18 gives the courts of Ireland exclusive jurisdiction while allowing urgent relief abroad. Once the talks succeed, the commercial agreements for Irish businesses take over from the NDA.

You start by choosing between a mutual and a one-way NDA; for one-way, enter the party who will disclose as the First Party. Each party then gets its own screen with full name, address and whether it is an individual or a company. For a company, a second screen asks for the country of incorporation, the registration number (the CRO number for an Irish company) and the name and position of the signatory, usually a director.

The Purpose deserves the most care. Write it as a noun phrase, for example "a possible joint venture for the development of a mobile payments application", and keep it narrow, because the Receiving Party may use the information for nothing else. The next screens cover the date, the duration of confidentiality, whether personal data will be shared and whether you want the non-solicitation clause. Use Next and Back to move between screens, then click Finish to generate the agreement in Word and PDF.

The most frequent mistake is signing too late. Founders send a deck, have a promising call and only then think of an NDA, once the sensitive material has gone. The second is a Purpose so vague it permits almost any use: "business discussions" protects very little, while a named project gives the Disclosing Party a clear breach to point to. The third is an unlimited duration for information that will be stale within a year. A fixed period of two to five years after the agreement ends is easier to defend, and the template keeps trade secrets protected beyond it anyway.

Over-reaching is the other family of errors. A non-solicitation period of three or four years attached to a short negotiation invites the argument that the clause is an unreasonable restraint of trade, and Irish courts tend to strike out an unreasonable restriction rather than rewrite it. Some parties add wording that forbids any contact with regulators or the Gardaí. That wording is void under the 2014 Act so far as it covers protected disclosures and makes the drafter look careless in front of a judge. Finally, check the parties: a non-disclosure agreement signed in a trading name instead of the company that owns the information, or by someone without authority, is a gift to the other side's solicitor.