Delaware Non-Disclosure Agreement (NDA) Review
Delaware matters for NDAs well beyond its borders, because so many agreements choose Delaware law. Trade secrets fall under the Delaware Uniform Trade Secrets Act, 6 Del. C. 2001 to 2009, which allows double damages for willful misappropriation. More recently, the Court of Chancery and the Delaware Supreme Court have refused to rewrite overbroad restrictive covenants, which changes how a non-solicit buried in an NDA is likely to fare.
Trade-secret law
Uniform Trade Secrets Act
Bundled non-compete
Enforceable if reasonable
Confidentiality & trade secrets in Delaware
Delaware protects trade secrets under its version of the Uniform Trade Secrets Act, and the federal Defend Trade Secrets Act applies on top. A reasonable NDA is enforceable, but courts still look at scope, an over-broad definition of "confidential information" with no exclusions is the most common weakness.
Watch for a non-compete inside the NDA
Enforceable if reasonable in scope and duration. Physician non-competes are restricted.
A confidentiality agreement should protect information, not restrict who you can work for. If an NDA in Delaware also tries to bar you from competitors or from soliciting contacts, treat that as a separate restrictive covenant and judge it by Delaware's non-compete rules above.
What does the Delaware trade secret statute provide?
6 Del. C. 2001 to 2009 tracks the uniform act. Under section 2003, willful and malicious misappropriation can bring exemplary damages of up to twice the base award, and section 2004 allows attorney fees in those cases or for bad-faith claims. Section 2006 sets a three-year limitations period from discovery. Section 2007 displaces conflicting state civil remedies but expressly preserves contractual remedies, so an NDA claim can run alongside a trade secret claim.
Will a Delaware court fix an overbroad non-solicit?
Less often than it used to. In Kodiak Building Partners v. Adams (Del. Ch. 2022) and later cases, the Court of Chancery declined to blue-pencil overbroad restrictive covenants. In Sunder Energy v. Jackson (Del. 2024), the Delaware Supreme Court affirmed a refusal to rewrite an overbroad non-compete, noting the bargaining imbalance between employer and employee.
For NDA signers, that is mildly good news: a sweeping non-solicit attached to an NDA may be thrown out entirely rather than trimmed. But it is not a reason to sign one; the confidentiality obligations can survive even if the covenant falls.
What Delaware's approach means for negotiating
Because Delaware courts have become less willing to rescue overbroad covenants, employers are drafting more carefully, and you have more room to ask for narrow terms. A focused NDA with standard exclusions, a fixed term for ordinary information, and no hidden non-compete is the outcome to aim for. If the agreement chooses Delaware courts as well as Delaware law, consider whether litigating there would be practical for you.
Delaware sources checked 2026-10-09: 6 Del. C. Chapter 20, Trade Secrets (Delaware Code Online). Laws change; confirm the current rule before relying on it.
What ClauseAudit checks in a Delaware NDA
- Definition of "confidential information", narrow, or everything?
- The four standard exclusions (public, already known, independently developed, third-party)
- Duration, a defined term, or a perpetual obligation?
- A "residuals" clause allowing use of what is remembered
- Any bundled non-compete or non-solicitation, judged by Delaware law
- Return/destruction obligation and one-sided injunctive relief
Delaware NDA FAQ
Is an NDA enforceable in Delaware?
Yes, a reasonable confidentiality agreement is generally enforceable in Delaware, backed by the state’s Uniform Trade Secrets Act and, at the federal level, the Defend Trade Secrets Act. What matters is scope: an NDA with an over-broad definition of "confidential information," no standard exclusions, or a perpetual term is far weaker than it looks and worth narrowing.
Can an NDA include a non-compete in Delaware?
NDAs sometimes bundle in non-compete or non-solicitation language, and in Delaware a reasonable non-compete can be enforceable, Enforceable if reasonable in scope and duration. Physician non-competes are restricted. A confidentiality agreement should not quietly restrict who you can work for, so flag any non-compete inside it.
What makes an NDA fair in Delaware?
A sound NDA defines confidential information narrowly, includes the standard exclusions (public information, what you already knew, what you independently develop, and what a third party gives you), has a defined term rather than a perpetual one, and does not include a broad "residuals" clause or a hidden non-compete. ClauseAudit checks each of these against Delaware law.
Can Delaware enforce a non-compete buried in an NDA?
Delaware is one of 34 jurisdictions where a non-compete is generally enforceable if reasonable in duration, geography and scope. Enforceable if reasonable in scope and duration. Physician non-competes are restricted. Confidentiality obligations are a separate question and are not affected by any of that, which is why a restraint tucked into an NDA deserves reading on its own terms rather than as part of the secrecy clause.
If the restriction in my Delaware agreement is too broad, what happens?
Courts may rewrite an overbroad restriction to something reasonable. That cuts against you: an employer has little to lose by drafting wide, because a court can pare the clause back rather than discard it. Negotiating the wording before signing matters more here than in states where an overbroad clause simply fails.
Does it matter which state's law the agreement names?
It can, because Delaware's neighbours do not all agree: Maryland (limited). Which law applies turns on the governing-law and venue clauses and on where the work is actually done, so those two clauses are worth reading before signing an NDA.
Why does my NDA choose Delaware law if I do not live there?
Many companies are incorporated in Delaware and prefer its well-developed business courts. Choosing Delaware law does not automatically override your home state's protections. For example, California Labor Code 925 limits out-of-state choice of law for California employees, and courts may refuse to apply Delaware law if it offends your state's fundamental policy.
Is a perpetual NDA enforceable under Delaware law?
For true trade secrets, obligations can last as long as the information stays secret. For other confidential information, Delaware courts look at reasonableness, and a perpetual term covering ordinary business information is harder to justify. Ask that perpetual protection apply only to trade secrets, with a fixed term for everything else.
Asked to sign an NDA in Delaware?
Upload it and get every clause checked against Delaware law in about a minute, with a fix for each problem.
How neighbouring states treat restrictive covenants
Nationally: 4 jurisdictions treat employee non-competes as void, 13 allow them only in limited circumstances, 34 generally enforce them if reasonable.
Delaware rules summarized as of October 2026; laws change. This is automated educational information, not legal advice. ClauseAudit verifies current Delaware law when you run your NDA, and you should confirm anything critical with a qualified attorney.