Insights

Checklist: what to check before signing an NDA involving AI

2 min read · Editorial oversight: Avv. Federico Papa

This checklist must be used by professionals immediately before signing the non-disclosure agreement. It serves to ensure that the final text meets the requirements for validity and the protection of trade secrets.

In brief

The AI NDA operational guide requires verifying party identity (Art. 1429 ICC) and aligning trade secret definitions with Arts. 98 and 99 IIPC. A penalty clause under Art. 1382 ICC pre-estimates damages from data leaks, simplifying the burden of proof. Pursuant to Art. 1322 ICC, the agreement must pursue legitimate interests to avoid contractual imbalances. Key requirements include post-contractual obligations, specific data deletion protocols from AI models, and the verification of signing authority to ensure legal effectiveness.

1.
Verification of the identity of the parties
Check that the identification data of the AI provider and the information owner are correct: an error regarding the identity of the other party causes voidability only if determinant of consent under Art. 1429 no. 3 of the Italian Civil Code, or if it affects the attribution of the contractual bond.
Related practical guide: How to draft an NDA (non-disclosure agreement) using AI
2.
Scope of confidential information (Arts. 98-99 IIPC)
Ensure that the definition of trade secret includes the requirements of secrecy, economic value, and the adoption of reasonable protection measures provided by the Italian Industrial Property Code: a lack of precision excludes statutory legal protection.
3.
Penalty clause (Art. 1382 ICC)
Verify the presence of a penalty clause pursuant to Art. 1382 ICC for breach that liquidates damages as a fixed amount: without this clause, proving damages resulting from data leaks to AI systems is extremely difficult.
4.
Worthiness of interest (Art. 1322 ICC)
Ensure that the agreement pursues interests worthy of protection under the legal system: clauses overly biased in favor of the AI provider could be challenged.
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5.
Duration of post-contractual obligations
Verify that the confidentiality obligation survives the termination of the contractual relationship: the immediate cessation of duties leaves the data freely usable by AI models.
6.
Exclusions from confidentiality
Verify that information exempt from confidentiality obligations, such as data already in the public domain, is clearly enumerated: this avoids disputes over non-confidential data.
7.
Data deletion and return
Check that instructions for destroying or returning information from AI databases at the end of the contract are included: data retention defeats the purpose of the NDA.
8.
Authority to sign and representation
Ensure that the signatory has the legal authority to bind the company: a signature by an unauthorized person renders the agreement ineffective.

Editorial oversight: Avv. Federico Papa·ICAMContent drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction

Frequently asked questions

What happens if Art. 1382 ICC is not cited in the NDA?

In the event of a breach of confidentiality, the injured party must provide strict proof of the damage suffered, making compensation uncertain and difficult to obtain.

What is the risk of an NDA without references to Arts. 98-99 IIPC?

The information might not qualify as protected trade secrets, forfeiting the special protections provided for industrial property in the event of illicit use by AI systems.