Reviewing an NDA from a US company

An NDA from a US company is drafted in a different tradition: 'represents and warrants', 'indemnify, defend and hold harmless', a residuals clause that lets the recipient use what its people remember, a governing law from Delaware, New York or California, and a notice about whistleblower immunity that US trade secrets law requires. Some of that means something different under English law and some of it means nothing. I review the NDA from the UK party's side and return it marked up with a written explanation of what the US drafting does under English law, the changes a US counterparty will accept, and what the UK party can enforce, for a fixed fee of £495 in three working days.

Who this is for

Businesses in England and Wales sent a non-disclosure, confidentiality or proprietary information agreement by a US customer, vendor, investor, partner or acquirer before discussions begin. Both parties are businesses; I advise on the law of England and Wales and identify the points on which the chosen state's law would need confirming.

What to look for in an NDA from a US company

US drafting and what it means under English law

US NDAs use 'represents, warrants and covenants' where an English NDA would say 'undertakes', 'indemnify, defend and hold harmless' where English law would give a damages claim, and 'attorneys' fees' provisions that reflect the US costs rule rather than the English one. The review translates each into its English law effect: an indemnity is read according to its words under English law and can be wider than a US court would read it, a representation engages section 2 of the Misrepresentation Act 1967, and a costs clause is given effect by an English court within its discretion. The review redrafts to the effect the parties intend.

Governing law, forum and enforceability

The NDA will choose the law of a US state and its courts, and the UK party has to consider whether it could sue or be sued there. Under Article 3 of Regulation (EC) No 593/2008 as retained an English court respects the choice of law, and under section 27 of the Unfair Contract Terms Act 1977 the Act applies notwithstanding a foreign choice of law only in limited cases. The review asks for English law and jurisdiction where the UK party is the main discloser, and otherwise recommends arbitration under the Arbitration Act 1996 with a neutral seat, since an award is enforceable in the United States under the New York Convention and an English judgment is enforced there under state law.

Residuals clauses and the information the recipient may keep

A residuals clause permits the recipient to use information retained in the unaided memory of its people, without reference to documents, and it is a US convention that hollows out the confidentiality obligation for a UK discloser whose value lies in know-how. The review removes the clause where the UK party is disclosing, or confines it to general knowledge and skill rather than specific information, and confirms that the UK party's trade secrets remain protected under the standard in the Trade Secrets (Enforcement, etc.) Regulations 2018, which require reasonable steps to keep the information secret.

The statutory notices US law requires

US NDAs include a notice that an individual will not be liable under US trade secrets law for disclosing a trade secret in confidence to a government official or a lawyer to report a suspected violation of law, which the US Defend Trade Secrets Act requires employers to give to obtain certain remedies. The notice is harmless for a UK party and the review leaves it in, adding the English equivalents: protected disclosures under Part IVA of the Employment Rights Act 1996 and disclosures required by law or a regulator, which no NDA can prevent.

Export control, data and the information crossing the Atlantic

US NDAs require the recipient to comply with US export control laws in handling the discloser's technical information, and a UK recipient's own obligations are under the Export Control Order 2008 for controlled technology. Personal data sent to the US company needs a transfer mechanism under Article 46 of the UK GDPR and the Data Protection Act 2018: the UK extension to the EU-US Data Privacy Framework where the US company is certified, or the International Data Transfer Agreement or Addendum. The review confines the UK party's compliance obligations to the laws that bind it and adds the data transfer provision where personal data will be exchanged.

Term, definition, exceptions and the clauses a US party accepts

US NDAs run for a fixed term with the obligation ending at the term's end, define confidential information by marking, and list exceptions in the same form as English NDAs. The review asks for trade secrets to be protected for as long as they remain secret rather than for the term, for information disclosed orally to be confirmed in writing, and for the exceptions to require proof from records. It also checks the no-licence provision, since copyright in the UK party's materials remains its own under section 11 of the Copyright, Designs and Patents Act 1988, and the assignment clause, which should not let the US party assign the NDA to an acquirer that competes with the UK party without notice.

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

The NDA is governed by Delaware law. Can we still enforce it?

You can sue in Delaware, which is expensive from England, or seek to enforce a Delaware judgment here. The review asks for English law and jurisdiction or a neutral arbitration seat, and where the US party will not move, sets out what the Delaware choice means in practice and what you can do from England.

What is a residuals clause and should we accept it?

It lets the recipient use what its people remember without reference to documents, which for a discloser of know-how removes much of the protection. The review removes it where you are the main discloser, or confines it to general skill and knowledge.

The NDA says we indemnify the US company for any breach. Is that normal in the US?

It is common in US forms and it means more under English law than a US court might give it, because an English court reads an indemnity according to its words. The review replaces it with ordinary liability for breach and a cap where the US party will accept one.

Related guidance and services

• Contract review, £495, the service this page describes
• Terms and conditions drafting, £995
• Reviewing a contract with a counterparty in the United States
• Reviewing an NDA a customer sent you

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.