NDAs in seven minutes: mutual, one-way, when to skip

Non-disclosure agreements are the document most founders sign without reading. That works until you sign one that locks you out of building a similar product, or one that survives forever, or one that contains a non-compete dressed as confidentiality. The fix is to keep two templates ready, know which fits, and refuse the rest.

Swiss law gives you a baseline: OR Art. 162 covers contractual confidentiality, OR Art. 321a obliges employees not to disclose trade secrets, and the Federal Act against Unfair Competition (UWG Art. 6) makes industrial espionage a criminal offence regardless of whether you have an NDA. That floor is real, which is why most pre-pitch NDAs are theatre.

Mutual or one-way

Use a mutual NDA when both sides share sensitive information: partnership talks, integration discussions, technical deep-dives, M&A. Use a one-way NDA only when one party clearly receives and the other does not, typically external consultants, contractors, or interviewees seeing production data. A mutual NDA is also useful with prospective hires when they will see internal benchmarks or roadmap during the process.

Term and survival

Three years from disclosure is the modern default for commercial information. Five years is acceptable for source code, model weights or pre-launch product specs. Avoid perpetual confidentiality except for narrowly defined trade secrets covered by UWG, because Swiss courts under ZGB Art. 27 will not enforce open-ended personal restraints, and the clause signals that the other side has not read what they sent.

Do I really need a lawyer to send a first NDA?

No. For a standard mutual or one-way NDA you can use a Swiss template, fill in the parties, the purpose, the term and the governing law, and send it. Budget zero in lawyer fees for the first hundred NDAs. Get counsel involved only when the counterparty sends a custom paper longer than four pages or when the NDA is a precursor to a large commercial deal (M&A, multi-year integration, enterprise sales over CHF 1 million).

Clauses to push back on

• Non-solicit of employees: usually overreaching from an NDA. If they want it, put it in a separate signed clause with a defined scope (typically twelve months, defined roles).
• Non-compete dressed as confidentiality: refuse. An NDA protects information, not market positions, and Swiss courts will reframe and often strike it.
• Choice of law in an exotic jurisdiction: insist on Zurich or your home canton for any contract under one million in expected value.
• Injunctive-relief language pointing at foreign courts: at most agree to interim relief under the Swiss CPC at the seat of either party.
• Liquidated damages clauses (Konventionalstrafe) above CHF 50'000: OR Art. 163 lets courts reduce excessive penalties, but you do not want to be the one defending the size.

What good carve-outs look like

Standard carve-outs let you use information that is already public, was already in your possession, or that you develop independently without reference to the other side. Add a residuals clause for general know-how stored in unaided memory, which protects engineers from being unable to use what they learned on the job. Without residuals, every conversation becomes a potential infringement claim three years later. Residuals are routinely accepted by Swiss commercial counterparties and routinely refused by US counterparties; if you face a US-style refusal, push back hard, the clause is the difference between a usable NDA and a knowledge prison.

Should I sign an NDA from an investor before the first pitch?

No. Top Swiss seed funds (Wingman, redalpine, Verve, btov) and almost every credible international fund will not sign at the first meeting, and asking signals inexperience. The reverse, an investor asking you to sign their NDA, is also a flag: the conversation likely is not with a real investor. Save the paperwork for the data-room phase, where a one-way NDA from your side to their advisors is normal and short.

If the other side breaches the NDA, what does enforcement actually cost?

Swiss commercial-court action for NDA breach starts at CHF 15'000 to 30'000 in lawyer fees plus filing fees scaling with the claim value, and a typical resolution takes nine to eighteen months in ordinary proceedings (faster at the Handelsgericht Zürich, slower in romandie). Damages are limited to what you can prove, which for confidentiality breaches is famously hard. The real value of the NDA is usually the chilling effect before the breach, plus an injunction under ZPO Art. 261 to stop the spreading. If the spread has already happened, the lawsuit rarely makes you whole.

When to skip the NDA entirely

Most investor first meetings do not need an NDA. Sending one before a pitch signals inexperience, and serious investors will not sign anyway. Save the paperwork for the second meeting and the data room. Skip NDAs at industry events, on intro calls, and in any conversation where you control what you say. Information you choose not to share does not need a contract to stay confidential.

Use the document only when the conversation cannot move forward without one. That is a much smaller set than your inbox suggests.