Have your NDA checked against German law — free, in 30 seconds
Most NDAs circulating in Germany are drafted from an Anglo-American template and keep provisions that do not survive German AGB review — above all the contractual penalty. Upload yours and see which parts hold.
Under German law an NDA is reviewed as standard business terms: a contractual penalty of a fixed sum “for each breach” without an upper limit and without fault is regularly void under § 307 BGB, and once void it is not reduced but falls away entirely. Confidential information must be defined specifically enough to be workable, with the usual carve-outs for information that is already public or independently developed. The Trade Secrets Act protects a secret only where reasonable protective measures were actually taken. This is an AI first assessment, not legal advice.
The contractual penalty is where NDAs fail
A fixed sum per breach, with no cap and no requirement of fault, is the single most common void clause in German NDAs. German courts do not reduce an excessive penalty in standard terms — the clause is struck out entirely, leaving only a claim for actual damages, which is far harder to prove. A well-drafted penalty requires fault, states a maximum, and reserves judicial mitigation.
Defining what is confidential
A definition covering “all information disclosed” is both unworkable and risky: it invites the argument that nothing in particular was protected. The workable approach marks information as confidential at disclosure, or defines categories, and carves out what is already public, was already known, was independently developed, or must be disclosed by law.
Term and survival
An unlimited obligation of confidentiality is unusual outside genuine trade secrets and is regularly challenged. Two to five years after the end of the cooperation is standard; for genuine trade secrets a longer term can be justified if it is stated separately.
The Trade Secrets Act runs alongside
Since 2019 the Geschäftsgeheimnisgesetz protects trade secrets in their own right — but only if the holder took reasonable protective measures. An NDA is one such measure, and one of the reasons to have one at all; access controls and marking are others.
Clauses we see, and what they are worth
“For each breach the receiving party shall pay a penalty of EUR 50,000.”
Void as standard terms
A fixed sum for each breach without an upper limit and without a fault requirement is regularly void under § 307 BGB. It is not reduced to a permissible amount — it falls away.
“All information exchanged between the parties is confidential.”
Risky
Too broad to be workable and hard to enforce. Without carve-outs for public or independently developed information, the clause is also open to challenge.
“The obligation of confidentiality applies for five years after the end of the agreement.”
Usual and enforceable
A defined term is standard practice and does not raise the issues an unlimited obligation does. For genuine trade secrets a longer term can be agreed separately.
Frequently asked questions
- Is a US-style NDA enforceable in Germany?
- Parts of it usually are, but the contractual penalty and very broad definitions frequently fail German standard-terms review. What survives is often less than the parties assumed.
- How high may a contractual penalty be?
- There is no fixed ceiling, but in standard terms it must require fault, state a maximum, and remain proportionate to the interest protected. Judicial mitigation should be reserved expressly.
- How long can confidentiality last?
- Two to five years after the end of the cooperation is common. An unlimited obligation is unusual and regularly challenged unless it concerns genuine trade secrets.
- What does the check cost?
- The first three findings are free and need no account. The full report is a one-off payment, with no subscription.
Hinweis: Keine Rechtsberatung. Diese Analyse ist eine KI-gestützte Informations- und Auffälligkeitsprüfung und stellt keine Rechtsberatung und keine Rechtsdienstleistung dar (Deutschland: RDG, Österreich: RAO). Sie macht potenziell auffällige Klauseln sichtbar und bewertet Prüfbedarf, nicht die Rechtswirksamkeit. Für rechtsverbindliche Auskünfte wende dich bitte an eine Anwältin oder einen Anwalt.