Software Development NDA FAQ

In most cases, yes. Anyone who will access your source code, API documentation, or technical architecture should sign an NDA before gaining access. This includes:

• Full-time employees (often included in employment agreements)
• Freelance developers and contractors
• Development agencies and their staff
• Security auditors and penetration testers
• Technical due diligence teams
• Beta testers with early access

The NDA should be signed before any confidential information is shared, not after. Consider using our email templates to request NDA signatures professionally.

It depends on the relationship:

• One-way NDA (you disclosing): Use when hiring contractors, onboarding freelancers, or during investor due diligence where you're primarily sharing your confidential information.
• Mutual NDA: Use for integration partnerships, API collaborations, or joint ventures where both parties will share proprietary information.

Even in mutual NDAs, consider whether the obligations should be symmetric. If you're sharing source code and they're only sharing API documentation, you may want stronger protections on your side. See our negotiation playbook for guidance.

A comprehensive source code definition should include:

• Human-readable code in any programming language
• Scripts (build, deployment, automation)
• Configuration files and environment variables
• Database schemas and migration files
• API specifications (OpenAPI, GraphQL schemas)
• Infrastructure-as-code (Terraform, CloudFormation)
• CI/CD pipeline configurations
• Code comments and inline documentation
• Version control history and commit messages
• Test suites and test data

Our source code NDA generator includes comprehensive definitions tailored to modern development practices.

A residuals clause permits developers to use general knowledge, skills, and techniques they've learned during an engagement, even after it ends. This addresses the practical reality that developers can't "un-learn" programming patterns or architectural approaches.

Why include one:

• Makes your NDA enforceable (overly broad NDAs may be struck down)
• Attracts better talent (developers may refuse NDAs without residuals protection)
• Industry standard practice

Key limitations to include:

• Must be retained in "unaided memory" (no notes or copies)
• Cannot reproduce specific code, algorithms, or trade secrets
• Cannot use information to create directly competing products

See our residuals clause guide for sample language.

Your NDA should include an open source carve-out that:

• Acknowledges that some components are governed by open source licenses
• Clarifies that open source portions are not "confidential information"
• Protects your proprietary modifications and integrations
• Distinguishes between "using" open source and "contributing to" open source

Without this carve-out, you could inadvertently restrict developers from contributing to open source projects they use professionally. See our open source NDA guide for detailed considerations.

Protect any API information that reveals competitive advantages or security details:

• Endpoint structure: URLs, paths, and resource naming conventions
• Authentication: OAuth flows, API key formats, token structures
• Rate limits: Throttling policies reveal capacity and pricing strategy
• Data schemas: Request/response formats expose your data model
• Webhooks: Event types and payload structures
• Error codes: May reveal security mechanisms or business logic
• Undocumented features: Beta or internal endpoints

See our API access NDA for specific clause recommendations.

Yes, this is recommended practice. API documentation and credentials serve different purposes:

• API Documentation NDA: Protects technical specifications, which may be shared broadly with potential partners for evaluation
• Credential Access Agreement: Covers actual API keys, secrets, and production access with stricter security requirements

Having separate agreements allows you to share documentation more freely during partnership discussions while maintaining tight control over production credentials. See our credential access NDA for specific provisions.

These serve different purposes:

• API NDA: Protects confidential information during partnership discussions and integration development. Covers documentation, specifications, and preliminary access.
• API Terms of Service: Governs ongoing production use of the API. Covers usage limits, acceptable use, SLAs, and operational requirements.

Most partnerships require both: an NDA during evaluation and integration, then Terms of Service for production use. The NDA obligations typically survive even after signing the ToS.

SaaS integrations involve unique considerations:

• Multi-tenant architecture: Partner access shouldn't expose other customers' data
• Uptime and availability: NDA may cover SLA information as confidential
• Pricing tiers: Rate limits tied to pricing are competitive intelligence
• Roadmap information: Future features shared during partnership discussions
• Customer data handling: May require DPA in addition to NDA
• Sandbox vs. production: Different access levels with different protections

See our SaaS integration NDA guide for comprehensive coverage.

White-label arrangements require additional protections:

• Branding requirements: How your software can (and cannot) be presented
• Pricing confidentiality: Your wholesale pricing vs. their retail pricing
• Customer ownership: Who owns the end customer relationship
• Customization limits: What resellers can modify
• Support escalation: Confidential support procedures
• Competitive restrictions: Limits on reselling to your competitors

Our white-label NDA guide covers these scenarios in detail.

Beta testing NDAs should address:

• Feature confidentiality: Unreleased features and UI designs
• Bug disclosure: Security vulnerabilities must not be published
• Feedback ownership: Who owns ideas and suggestions from testers
• Screenshot/recording restrictions: Prevent leaks on social media
• Timeline confidentiality: Launch dates and roadmap
• Comparison restrictions: Prevent benchmarking against competitors

The NDA should also specify what happens when the beta ends - typically, testers must delete all beta software and documentation.

Duration depends on the information being protected:

• Source code and algorithms: 3-5 years, or until publicly released
• API documentation: 2-3 years, as APIs evolve rapidly
• Trade secrets: Indefinite (as long as they remain secret)
• Beta features: Until public launch
• Business information: 2-3 years is standard

Many software NDAs use a hybrid approach: general confidentiality obligations last 2-3 years, but trade secrets are protected indefinitely. Consider what makes sense for your specific technology and competitive landscape.

Take immediate action:

1. Document everything: Screenshot evidence, save communications, log suspicious activity
2. Revoke access: Immediately disable repository access, API keys, and credentials
3. Preserve logs: Export access logs, audit trails, and git history
4. Send formal notice: Written notice of suspected breach per NDA requirements
5. Consult counsel: Evaluate legal options and potential damages
6. Consider injunctive relief: For ongoing breaches, court orders may be necessary

Our breach response guide provides a detailed playbook for handling NDA violations.

NDAs and non-competes are different:

• NDAs prevent disclosure of confidential information but don't restrict employment
• Non-competes restrict where someone can work (and are unenforceable in many states like California)

However, a well-drafted NDA can effectively limit competitive harm by:

• Requiring return/destruction of all confidential materials
• Prohibiting use of trade secrets at new employer
• Including non-solicitation provisions for customers/employees

If you need competitive protection beyond an NDA, consult employment counsel about what's enforceable in your jurisdiction.