Mutual non-disclosure agreement (umowa o zachowaniu poufności)

Published byDocMuse

A mutual NDA for two businesses in talks about cooperation, an investment or a deal: the purpose, a definition of confidential information linked to trade secrets under Polish law, the exceptions, rules on access and protection, return of materials, how long it lasts after the talks, and a contractual penalty with the right to claim damages above it. It creates no obligation to sign anything further.

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Common questions

What does an NDA add when Polish law already protects trade secrets?

The Unfair Competition Act protects information as a trade secret only where its holder took reasonable steps to keep it confidential (art. 11(2)) — an NDA is exactly such a step. It also covers information that is not a trade secret, and allows a contractual penalty that is claimed without proving the amount of loss.

Is the contractual penalty for a confidentiality breach due without proving loss?

Yes — the penalty is due in the agreed amount regardless of the size of the loss, and according to Poland's Supreme Court even where no loss arose. A court can, however, reduce it if it is grossly excessive (art. 484 § 2 of the Civil Code). Damages above the penalty can be claimed only where the contract allows it (art. 484 § 1) — this one does.

How long should a mutual NDA last?

Most often for the talks and 2 to 5 years after they end — as long as the information keeps its value. For trade secrets, such as recipes or source code, the duty can last as long as the information stays confidential, which this agreement says expressly. Too short a period weakens protection, and an excessively long one is harder to enforce.