How Long Do NDAs Last?
NDAs are becoming so commonplace that the question is more likely, ‘Why have I not been asked to sign one?’ rather than the fact that you have. However, NDAs are not always what they appear.
Most NDAs have a life, sometimes stated, sometimes not. An expiration date can be challenged if the agreement protects information it shouldn’t. An end date can also be rendered redundant by the passage of time.
The length of an NDA is a key concern for both the producer and the signatory. This quick read explains all the key points about how long an NDA can last. As litigation solicitors we frequently come across NDA’s in the context of litigation, and where disputes have arisen. We dont draft NDA’s other than in the context of a litigation settlement.
How Do NDAs Work in the UK?
NDAs protect confidential or commercially sensitive information. Businesses primarily use them to prevent competitors from accessing vital data.
There are two types of NDA. If information only flows in one direction, then this is a unilateral or one-way NDA. If both parties to the contract share details, you’ll need a mutual NDA, which binds both parties equally.
NDAs are also used in employment disputes to keep specific details about the settlement agreement out of the public domain and away from other employees.
NDAs can only protect legitimate business information and have been misused in a small number of cases. The previous Conservative government announced that new legislation would be introduced to combat the misuse of NDAs in the workplace.
The Labour government partially addressed this in their Employment Rights Bill, published in October 2024. This bill voids NDAs that prevent disclosures about harassment, sexual harassment, and criminal acts in the workplace.
NDA Duration Explained
Some NDAs have a specific expiry date, usually between two and five years, whereas others are open-ended and, in theory, last forever.
It’s important to understand that, with an NDA without an expiry date, the passage of time may render the information less commercially sensitive or sensitive at all. It makes the NDA less significant, if relevant, and means a court is less likely to enforce it if the data it protects is no longer commercially sensitive.
To protect the enforceability of an NDA it should refer to disclosures which are permitted (for example to the court or an appropriate regulatory body) and be as particular as possible about what confidential information it is protecting.
The NDA will fall away if the information it is protecting is no longer confidential or becomes publicly available.
What Happens if an NDA Is Breached?
The implications of breaching an NDA can be serious with far-reaching consequences.
In the case of an NDA breach, the affected party may choose to bring a civil claim. This will reflect the seriousness and extent of the breach, whether it was deliberate, and whether damage was caused by the breach.
However, financial compensation sometimes doesn’t reflect the damage caused by an NDA breach and failure to keep certain information confidential. If the other party knows that an NDA is about to be breached, they can apply to the court for an injunction to prevent disclosure. Sometimes, NDAs refer to this process as the appropriate route for enforcement.
A court will consider the NDA in the round, including the current sensitivity of the protected information, the proportionality of the NDA regarding it, and any expiration date.
An injunction is never guaranteed. However, referencing this in the agreement may encourage the court to grant one on the basis that both parties are aware of it and accept it as a remedy.
Frequently Asked Questions
Does an NDA Have an Expiration Date?
Some NDAs have an expiration date, typically between two and five years. The end date must be reasonable and proportionate to the protected information; otherwise, it may be challenged. It’s essential to look at the NDA in the round. An NDA with or without an expiry date may still become redundant because the information is no longer sensitive.
Are NDAs Indefinite?
NDAs can be indefinite but can be challenged if this is unreasonable and disproportionate to the protected information. Some NDAs with no end date will naturally expire because the information they seek to protect is no longer sensitive. However, most NDAs have an expiration date of up to five years.
Final Thoughts
Whether you’re implementing an NDA or have been asked to sign one, it’s vital to understand its implications, including what it can protect, how long the NDA should last, and what an appropriate expiry date is.
Our expert commercial and employment law litigators can help you navigate resolution of a dispute and/or advise you in circumstances where an NDA might have been entered into, which you no longer want to be bound or held by. If you need advice on protecting confidential or sensitive information, contact our specialist litigation team at Helix Law and we will be happy to assist you. We work nationally and will be happy to help.
