Return or Destruction of Confidential Information
NDA
Table of Contents:
Return or Destroy
Destruction If Return Is Not an Option
Confirmation of Destruction
Return or Destruction of Confidential Information
Return or Destroy
An NDA should be clear and specific as to the disposition of information that was disclosed once the NDA has been terminated or expires. As reflected in the following exemplars, the two most common options are return or destruction of retained confidential information, which the receiving party may choose at its election:
Exemplar N20A-1
Within fourteen (14) days of a request by the Disclosing Party, all Confidential Information of the Disclosing Party, and all copies, notes, summaries or materials prepared by Receiving Party or its Representatives based on or derived from the Confidential Information of the Disclosing Party, shall be destroyed or returned and not retained by the Receiving Party or its Representatives and, upon request, it shall furnish written confirmation that it has done so.
Exemplar N20A-2
If either party decides that it does not wish to proceed with the Potential Transaction with the other party, the party so deciding will promptly inform the other party of that decision by giving a written notice of termination. In that case, or at any time upon the request of the Disclosing Party for any reason, each Receiving Party will promptly deliver to the Disclosing Party, or destroy (in which case the Receiving Party shall provide written confirmation of such destruction), any and all Confidential Information (and all copies thereof and extracts therefrom, whether in hard-copy form or intangible media, such as electronic mail or computer files) furnished to the Receiving Party or its Representatives by or on behalf of the Disclosing Party.
The following exemplar makes destruction available only upon approval by the information owner:
Exemplar N20A-3
Upon the Disclosing Party’s request, the Receiving Party and its Representatives shall promptly, return to the Disclosing Party or, at the Disclosing Party’s election, destroy, any Confidential Information (and all copies, extracts or other reproductions thereof) obtained or possessed by the Receiving Party or any of its Representatives and expunge all Confidential Information from any computer, word processor or other device under the control of the Receiving Party or any of its Representatives, and, if so requested, confirm such destruction.
Destruction If Return Is Not an Option
The following exemplar makes destruction only an option if return is impractical:
Exemplar N20A-4
Promptly at Disclosing Party’s request, Receiving Party shall return all Confidential Information and derivatives thereof within Receiving Party’s possession to Disclosing Party. In the event it is not practical to return certain Confidential Information, Receiving Party shall, after conferring with Disclosing Party, destroy said Confidential Information and provide a written certification to Disclosing Party that said Confidential Information has been destroyed.
Confirmation of Destruction
As reflected in the following exemplars, the destruction of confidential information in accordance with the NDA should be verified and confirmed, e.g., by written certification by the receiving party:
Exemplar N20A-5
Upon the expiration of this Agreement, written request of the Disclosing Party or the Receiving Party’s determination that it no longer has a need for such Confidential Information, the Receiving Party shall return all Confidential Information and copies in tangible form thereof or certify in writing that it has destroyed all Confidential Information and copies in tangible form thereof.
Exemplar N20A-6
Upon the written request of the Discloser, the Recipient will return to the Discloser or, at the Recipient’s sole option, destroy all Confidential Information of the Discloser in whatever form (along with all copies and portions thereof) that is in the Recipient’s possession or under its control and will instruct its Representatives to do the same. If requested in writing by the Discloser, the Recipient shall confirm in writing that all such Confidential Information has been returned or destroyed in accordance with this Section.