Non-disclosure agreement (NDA) between companies – what should the agreement include?

A non-disclosure agreement, often called an NDA, is used when companies need to share sensitive information without granting the counterparty free rein to use or disseminate it. A good NDA defines both what is being protected and what the recipient is actually allowed to do with the information.

Facts checked October 1, 2026.

When is a non-disclosure agreement used between companies?

NDAs are common before negotiations, due diligence, product development, tendering, strategic collaborations, investments, consulting assignments, and other situations where one or both parties need access to information that should not be disseminated.

The agreement can be unilateral—where only one party provides information—or mutual, when both parties share confidential material.

10 points an NDA should regulate

1. The parties: which legal entities are covered, and may group companies access the information?
2. Confidential information: define the types of information clearly enough without making the definition meaninglessly unlimited.
3. Permitted purpose: specify why the recipient is allowed to use the information.
4. Authorized recipients: may employees, advisors, consultants, or subcontractors access the information, and under what terms?
5. Security requirements: regulate access, storage, copying, and other reasonable safeguards.
6. Exceptions: for example, information that is already publicly known, that the recipient already possessed legally, or that they develop independently.
7. Compelled disclosure: how should the party act if information must be disclosed by law or authority decision?
8. Agreement term and duration of confidentiality: these two do not always have to be identical.
9. Return and deletion: what happens to documents, copies, and stored files when the dialogue or agreement ends?
10. Penalties and disputes: regulate liability, potential liquidated damages, governing law, and dispute resolution with reasonable and clear terms.

How does an NDA relate to the Trade Secrets Act?

According to Section 2 of the Trade Secrets Act (2018:558), the information must, among other things, relate to business or operating conditions, not be generally known or readily accessible to persons who normally have access to such information, be subject to reasonable non-disclosure measures, and be capable of causing competitive harm if disclosed.

An NDA can be an important part of a company's reasonable measures to keep information secret, but practical security measures also play a role. Permissions management, labeling, access restrictions, and clear internal routines can therefore be just as important as the agreement itself.

The law also explicitly states that an employee's normal experience and skills are not trade secrets, and that information about crimes or other serious misconduct is not a trade secret. Confidentiality clauses should therefore not be drafted as if every piece of information can be made secret without limit.

Common mistakes in NDAs

Overly broad definitions are a recurring problem. If "everything ever said between the parties" is treated the same way, the agreement becomes difficult to apply in practice. Another mistake is to describe what the recipient is not allowed to do but forget the positive purpose—what the recipient is actually allowed to use the information for.

It is also important to distinguish between confidentiality and intellectual property rights. The fact that a party is permitted to see a drawing, code, method, or trademark material does not in itself mean that ownership or a license is transferred. If the collaboration is to create new material, the rights should be regulated separately in, for example, a collaboration agreement or a consulting agreement.

Related guides

Confidentiality undertaking for employees · Consulting agreements – what should they contain? · Collaboration agreements between companies

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