Mutual NDA before a partnership discussion

Two businesses exploring a partnership each disclose plans, figures and know-how that the other could use on its own if the talks come to nothing. A mutual non-disclosure agreement binds both parties to the same obligations for the information each discloses, confines its use to evaluating the proposed relationship, and records that neither side is committed to proceed. The symmetry of the form does not guarantee symmetry of effect, since the parties rarely disclose the same amount. I review the NDA one side has proposed, or draft one for the party instructing me, for a fixed fee of £495 in three working days.

Who this is for

Businesses in England and Wales opening discussions with another business about a partnership, collaboration, joint venture, reseller or referral relationship, a co-development project or a merger, before any heads of terms or agreement exist. Both parties are businesses.

What matters in a mutual NDA before a partnership discussion

The purpose, and the point at which the NDA stops applying

The NDA should define the purpose as evaluating and negotiating the proposed relationship, described by reference to what the parties are discussing, and should say that use of the information for any other purpose is a breach. It should also say what happens to the obligations if the parties enter into a definitive agreement, which will have its own confidentiality terms, and if they do not, in which case the obligations continue for their stated period.

Symmetrical obligations for asymmetrical disclosures

A mutual NDA applies the same obligations to each party, and the review checks that they suit the party disclosing more: a definition wide enough to cover its plans, financial information and customer data, a permitted recipients list that matches its counterparty's structure, and a duration long enough for its trade secrets. It also checks that the party disclosing less is not bound to obligations it cannot meet, such as segregating information from its own staff.

Non-solicitation, non-circumvention and the customers you introduce

Partnership discussions reveal customers, suppliers and staff, and the NDA should stop each party using what it learns to approach the other's customers or hire its staff for a period, and, where one party introduces the other to an opportunity, from pursuing it alone. The review drafts a non-solicitation and non-circumvention clause proportionate to the discussions, since a wide restriction between businesses in the same market can raise issues under section 2 of the Competition Act 1998, and confines it to the relationships disclosed under the NDA.

No obligation to proceed, no partnership and no licence

The NDA should record that neither party is obliged to enter into any further agreement, that discussions may be ended at any time, that no partnership, agency or joint venture is created by the discussions, since businesses carrying on a business in common with a view of profit are partners under section 1 of the Partnership Act 1890 regardless of the label, and that no licence is granted in either party's intellectual property, which stays with its owner under section 11 of the Copyright, Designs and Patents Act 1988.

The information exchanged and what each side may retain

The NDA should require each party to return or destroy the other's information when the discussions end, with a carve-out for copies required by law or held in routine backups, and should deal with the notes, analyses and models each party has prepared from the other's information, which remain confidential even though the recipient created them. The review checks that the confidentiality of the discussions themselves is protected, so that neither party may announce that talks are taking place or have failed.

Duration, remedies and the disclosures the law protects

The obligations should last for a stated period after the discussions end, with trade secrets protected for as long as they remain secret, the standard the Trade Secrets (Enforcement, etc.) Regulations 2018 apply, and the NDA should acknowledge that damages may be an inadequate remedy so that an injunction can be sought. The NDA should carve out disclosures required by law or a regulator and protected disclosures under Part IVA of the Employment Rights Act 1996, and should be governed by English law with jurisdiction in England and Wales, with personal data exchanged under it handled in accordance with the UK GDPR and the Data Protection Act 2018.

What it costs

NDA review or drafting, £495. Three working days.

Buying online forms the engagement on payment. The scope is what the contract review page describes, you accept the Terms of Service at checkout, and I email you within four working hours to get started. If you would rather ask something first, email me.

What you get

• Your own contract returned with my amendments as tracked changes, plus a clean version with every change accepted, ready to send to the other side
• Comments in the document where a point needs explaining
• A written explanation of what I have changed and why, by email or as an attachment if it is lengthy, marking the points I would hold firm on and the ones that are negotiable
• A view on what is normal market practice and what is the other side pushing their luck
• One round of follow-up questions by email, included

What is not included

• Negotiating directly with the other side, which I quote separately once I know who is on the other side. Where the other side is willing to share a live document, I can work in that document directly
• Drafting a replacement contract from scratch
• Advice on the law of any jurisdiction other than England and Wales
• Tax, accounting or regulatory advice
• Disputes about a contract that is already signed

Questions I am often asked

We will be disclosing far more than the other side. Is a mutual NDA still right?

A mutual NDA can work if its terms are drafted for the party disclosing more, and the review drafts them that way: a wide definition, a long duration for trade secrets and a non-circumvention clause. Where the imbalance is large, a one-way NDA in your favour is the alternative.

Can the other side approach our customers if the partnership does not happen?

Only if the NDA fails to prohibit it. The review adds a non-solicitation and non-circumvention clause covering the customers, suppliers and opportunities disclosed under the NDA, for a defined period, proportionate to the discussions.

Does signing the NDA commit us to the partnership?

It should not, and the review makes sure it does not: the NDA records that neither party is obliged to proceed, that either may end the discussions, and that no partnership or joint venture is created by talking.

Related guidance and services

• Contract review, £495, the service this page describes
• Shareholders agreement, £995
• Reviewing a collaboration agreement with another business
• NDA for a joint venture discussion

This page is general guidance for businesses in England and Wales, not advice on your own circumstances. Last reviewed: September 2026. Email geoffrey@caesar.co.uk.