Delaware Mutual Non-Disclosure Agreement
Delaware has no statute written for non-disclosure agreements. A mutual NDA under Delaware law rests on contract law, the Delaware Uniform Trade Secrets Act, and a choice-of-law statute that only protects agreements involving $100,000 or more. Requests for an injunction to stop a leak go to the Court of Chancery.
What Delaware law does to this document
What counts as a trade secret
Delaware protects information that derives independent economic value from not being generally known and that is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. A signed NDA is one of those efforts. Information handed over with no confidentiality obligation is harder to defend as a trade secret later.
6 Del. C. § 2001(4)Remedies for misappropriation
Actual or threatened misappropriation may be enjoined. Damages can include both the actual loss and the unjust enrichment the loss does not capture. Where the misappropriation is willful and malicious the court may add exemplary damages of up to twice the award. A claim must be brought within 3 years after the misappropriation is discovered or should have been discovered.
6 Del. C. §§ 2002, 2003, 2006The Delaware choice-of-law statute has a dollar floor
Parties to a written agreement may choose Delaware law, and the choice is enforced whether or not they have any other connection to the state, so long as they are subject to the jurisdiction of Delaware courts or arbitration and can be served with process. The statute does not apply to an agreement involving less than $100,000. Most NDAs state no dollar value, so the governing-law clause may have to stand on ordinary conflict-of-laws rules instead.
6 Del. C. § 2708Where an injunction is sought
The Court of Chancery has jurisdiction over all matters and causes in equity, which includes a request to enjoin a disclosure. It has no jurisdiction where a sufficient remedy is available at law in another Delaware court. A claim for money damages alone belongs elsewhere, so a venue clause should name the state and federal courts in Delaware generally and not one court.
10 Del. C. §§ 341, 342Employee non-solicitation clauses are reviewed for reasonableness
Delaware courts enforce non-solicit agreements only if they are reasonable in geographic scope and duration, advance a legitimate economic interest of the party seeking enforcement, and survive a balancing of the equities. In 2024 the Delaware Supreme Court affirmed a refusal to narrow overbroad covenants and enforce what remained. A non-solicitation clause added to an NDA should be limited to the people the parties actually meet through the deal.
Sunder Energy, LLC v. Jackson, 332 A.3d 472 (Del. 2024)Time to sue for breach
An action based on a promise must be brought within 3 years after the claim accrues. A written contract involving at least $100,000 may set its own period of up to 20 years. An NDA below that amount cannot extend the 3-year period by agreement under this provision.
10 Del. C. § 8106(a), (c)Where people go wrong in Delaware
- Assuming a Delaware governing-law clause is enforced automatically: 6 Del. C. § 2708 protects only agreements involving $100,000 or more whose parties are subject to Delaware courts or arbitration, and the generator's draft states no dollar value and uses whatever venue county is entered.
- Marking documents confidential and doing nothing else, when the statute protects only information kept secret through reasonable efforts.
- Adding a broad no-hire or non-solicitation clause and expecting a Delaware court to trim it to a lawful size.
How the generator works
Protect confidential information in both directions before a partnership, deal, or hire conversation. Answer a short interview and the draft assembles as you go, with Delaware already set as the governing state. Download it as PDF or Word. No fee. No account.