tools-only Duration & Scope (Term, Survival, Territory)
This reference focuses on time, scope, and trigger mechanics. Keep analysis jurisdiction-agnostic: describe business impact and propose balanced language.
Contents
- Term vs. survival
- Territory / cross-border considerations
- Scope of affiliates and corporate changes
- Retroactive coverage
- Trade secrets (practical handling)
1) Term vs. survival
Definitions
- Term: how long the agreement governs disclosures (the “relationship window”).
- Survival period: how long confidentiality obligations continue after the Term ends.
What to check
- When does the Term start? (Effective date vs. first disclosure.)
- Does the NDA cover disclosures made before signature?
- Is there a clear survival period?
Recipient red flags
- Survival is perpetual for all information.
- Survival is unclear or tied to “until information becomes public” with no carve-outs.
Balanced approach
- Fixed survival for ordinary confidential info.
- Longer survival for narrowly defined trade secrets.
Suggested language
This Agreement begins on the Effective Date and continues for [12–24] months (the “Term”). Confidentiality obligations survive for [2–5] years after expiration or termination, except for Trade Secrets (if any), which remain protected for so long as they remain trade secrets.
2) Territory / cross-border considerations
Commercial NDAs often include:
- A governing law / venue clause (legal).
- Practical cross-border sharing concerns (operational).
What to check (operational)
- Will Confidential Information be accessed from multiple countries?
- Are cloud systems distributed globally?
- Does NDA require storage “only in [country]”?
Recipient red flags
- Data residency commitments you cannot meet.
Suggested approach
- Avoid strict residency promises unless you have a dedicated compliant environment.
- Instead, commit to reasonable safeguards and access controls.
Personal data callout: NDAs are not a substitute for data protection terms when personal data is involved. Treat separately.
3) Scope of affiliates and corporate changes
What to check
- Are affiliates allowed to receive disclosures? (If needed.)
- Does “affiliate” include future acquisitions?
- Assignment clause: can obligations transfer on merger or asset sale?
Recipient red flags
- Prohibits assignment even in change of control, risking breach in acquisition.
Suggested language
Either party may assign this Agreement in connection with a merger, acquisition, or sale of substantially all assets, provided the assignee assumes the obligations herein.
4) Retroactive coverage
What to check
- Does NDA cover info disclosed before signing?
Common fix
This Agreement also applies to Confidential Information disclosed within [30–90] days prior to the Effective Date.
5) Trade secrets (jurisdiction-agnostic handling)
Why it matters
Trade secret concepts exist in many legal systems but definitions vary. Avoid making legal determinations; instead:
- Ask whether information is actually treated as secret.
- Ask what measures exist to keep it secret.
Practical checklist
- Is the information limited-access internally?
- Is it labeled/handled as confidential?
- Is it stored with access controls?
M&A / Due diligence: “trade secret” labels may be used broadly. Focus on feasibility of compliance and proportionality.