Cross-Border NDAs: Parties and Affiliates

When an overseas business sends an NDA, start by asking who the contracting party is. The company employing your contact may differ from the legal entity named in the document.

Identify the Legal Entity, Not Just the Brand

A group name or service brand may not identify the contracting entity clearly. Check its full legal name, jurisdiction of incorporation and address, and establish its relationship to the company that will conduct the transaction or exchange information.

Is a General Reference to Affiliates Enough?

If the parties are described as “Company A and its affiliates”, clarify which entities are included and what obligations each is intended to assume. That wording alone may not establish every affiliate’s participation or responsibility. The signatory’s authority and the governing law also need consideration.

Distinguish Contracting Parties from Permitted Recipients

If an affiliate needs access to information, it might become a party to the NDA, or sharing might be permitted subject to conditions. Check the purpose of sharing, the companies and personnel covered, confidentiality obligations and responsibility for a recipient’s breach.

Clarify Roles in a Multi-Party NDA

In a three-party project, the flow of information can become complex. Go beyond changing singular terms to plurals: check that each party’s role as discloser or recipient, permitted use and return or deletion obligations match the actual arrangement.

Map the Information Flow before Signing

List the contracting entities, signatories, disclosing companies and receiving companies on one page. Comparing that map with the NDA can reveal a company that needs access but is not covered, or an area where responsibility remains unclear.

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