Handbook / Contracts and proposals

NDA for freelancers: what to sign, what to check and when to use one

Clients often ask freelancers to sign a non-disclosure agreement before sharing plans, data or products. That is reasonable: they are trusting an outsider with information that matters. But NDAs vary widely. Some are short and fair; others are broad documents that limit your future work or include terms that have nothing to do with confidentiality. This guide explains what to look for.

What an NDA does

A non-disclosure agreement is a contract in which one or both parties agree to keep certain information confidential and use it only for an agreed purpose. It typically covers:

• what information is confidential
• what the recipient may and may not do with it
• exclusions
• how long obligations last
• what happens to information when the project ends
• remedies for breach

Much of what clients want to protect may qualify as trade secrets. Legal sources describe a trade secret as confidential information with independent economic value because others do not generally know it, where the owner takes reasonable measures to keep it secret. Examples include source code, customer lists, pricing and marketing plans. Asking contractors to sign NDAs is one of those reasonable measures.

One-way or mutual

• One-way: protects the client's information. Most common for freelancers.
• Mutual: protects both parties. Useful if you share proprietary methods, templates, pricing or tools.

Clauses to check

Definition of confidential information

Is it limited to information marked or identified as confidential, or does it cover everything you see or hear? Broad definitions are common but make compliance harder.

Exclusions

Standard exclusions include information that:

• is or becomes public through no fault of yours
• you already knew
• you received from someone else without restriction
• you developed independently

Make sure these are present.

Duration

How long do obligations last? A fixed period after the project is common for ordinary confidential information, with longer protection for trade secrets.

Return or destruction

What must you do with files when the project ends? Check whether you may keep copies for legal or records purposes.

Portfolio and references

An NDA may prevent you from showing the work or even naming the client. If portfolio use matters, agree in writing what you can show, perhaps after launch or in anonymised form. The guide to a freelance portfolio covers permission.

Hidden extras

Watch for terms that go beyond confidentiality:

• non-compete clauses
• non-solicitation of clients or staff
• assignment of intellectual property
• broad indemnities

These belong in a negotiated independent contractor agreement, not slipped into an NDA. Ask for them to be removed or narrowed.

Remedies

Many NDAs allow the client to seek court orders to stop disclosure. Check for penalty amounts, attorney fee clauses and which state's law applies.

The whistleblower notice

Federal trade secret law, at 18 U.S.C. 1833(b), provides that an individual is not liable under trade secret law for certain confidential disclosures to government officials or attorneys made solely to report or investigate a suspected violation of law, or in sealed court filings. Employers are required to give notice of this immunity in agreements governing trade secrets with employees, and the statute defines employee to include contractors and consultants. You may see this notice in NDAs; it is standard.

Using your own NDA

If you regularly share sensitive information yourself, keep a short mutual NDA template. Use plain language and keep it focused on confidentiality.

Practical habits

• store client information securely, with access limited to people who need it
• do not discuss client projects publicly without permission
• make sure subcontractors sign matching confidentiality terms
• keep a list of NDAs and their end dates

Asking for changes

Clients usually expect some negotiation. Ask politely: "Could we limit this to information marked confidential?" or "Could we remove the non-compete, as it isn't related to confidentiality?" Reasonable clients often agree.

Keep a simple log

Note each NDA you sign, the client, the date, the term and what it covers. That makes it easier to check what you can show in your portfolio and when obligations end.

Sign fair NDAs, but read them: check the definition, exclusions, duration, portfolio rights and any hidden non-compete or ownership terms, and use a mutual NDA when you share your own confidential material.