NDA: Unilateral or Mutual?
Objective: Know when and how to use an NDA (Non-Disclosure Agreement) to protect sensitive information exchanged before, during and after the contractual relationship.
Legal sources
- Art. 1112-2 C. civ. - Duty of confidentiality in pre-contractual negotiations
- Law No. 2018-670 - Trade secret protection (transposition of EU Directive 2016/943)
The NDA (Non-Disclosure Agreement) is a fundamental tool in procurement. It is often signed before negotiations even begin when sensitive information needs to be shared (specifications, technical data, volumes, strategy).
📄 Unilateral NDA (One-Way)
When: Only one party discloses sensitive information.
Typical procurement cases:
- The buyer shares a confidential specification with a potential supplier during a tender
- A supplier presents proprietary technology during a POC (Proof of Concept)
Advantage: Simple, quick to implement
Limitation: Only protects one party
🔄 Mutual NDA (Two-Way)
When: Both parties exchange confidential information.
Typical procurement cases:
- Negotiating a framework agreement where each party shares sensitive data
- Co-development or open innovation with a strategic supplier
- Supplier due diligence in the context of a partnership
Advantage: Balanced protection for both parties
Recommended: This is the most common form in procurement
✅ Essential clauses of an effective NDA
- Definition of confidential information: Broad, including technical, commercial, financial and strategic information - written or oral
- Exclusions: Information already in the public domain, independently obtained, or required to be disclosed by law
- Recipient's obligations: Non-disclosure, use limited to the defined purpose, restricted access (need-to-know basis)
- Duration of confidentiality: 3 to 5 years after the end of the relationship (standard in procurement)
- Return/Destruction: At the end of the contract or upon request, with written certificate
- Remedies: Right to injunctive relief (emergency measures) + damages
- Contractual penalty: Fixed sum in case of breach to facilitate compensation
Practical case - NDA during a tender process
A buyer launches a tender for a new ERP system. Before sharing the detailed specifications, the buyer has each candidate sign a mutual NDA.
- ✅ Mutual NDA recommended: the buyer shares specifications, suppliers share their technical solutions and pricing
- ✅ Duration: 5 years after the end of the tender process
- ✅ Key clause: Unsuccessful commercial proposals must be returned or destroyed
- ❌ Common mistake: Not having an NDA signed before the tender and sharing specifications freely
"Each Party undertakes to maintain in strict confidence all Confidential Information received from the other Party, to use it solely for the purposes of the Project, and to disclose it only to members of its personnel with a legitimate need to know who are bound by confidentiality obligations at least as protective. This confidentiality obligation shall survive for a period of five (5) years from the disclosure of each item of Confidential Information."