Confidentiality / NDAs
When one or more parties wish to disclose sensitive information to one another, but wish to do so without risking general publication. Such agreements are typically used in a business context, but have been used for clients in other ways. Generally NDAs are useful tools when progressing a potential business discussion with the hope and intent of formalising business arrangements going forward. The subject matter that one or both parties wish to keep secret and to avoid others from accessing it, could be a trade secret or some know-how that is yet to be protected or perhaps is not entirely capable of protection, sensitive business information such as financial information, market analysis, sales or customer data. There is no limit to what the information might be, only that it is not publicly known and is perceived to have value or particular advantage.
Why have one:
- If there is a need to disclose material then legal rights are better protected when using NDAs
- A set of rules governing disclosure have certainty and are easier to point to should disagreement arise
- Greater chance of enforcing your rights should unauthorised disclosure arise, with the opportunity of having access to powerful legal remedies if available
- Less likely that a party will breach or allow an unauthorised disclosure
- Like any agreement it does require the parties to behave as required under the NDA
- Should someone breach the NDA it can be expensive to enforce, and damages claims could be limited
- You cannot undo disclosure, especially if the material is public or goes viral
- Most material is in digital form and can be easily copied, stored, and potentially used without consent
- If it is possible to achieve what you want without the need to disclose then keeping the information secret is often more of an advantage
From a business or commercial perspective I am often instructed by directors, business owners, inventors, and entrepreneurs. It may be because they have a business advantage or an invention, and are looking to partner with someone, offering to sell services, or looking for investment. If you are in a position where you may disclose information that you consider valuable you should have your own NDA and not assume that another’s is either suitable or will even protect you.
I have developed a number of different NDAs for clients, including those that required both sides to exchange confidential information, for those clients seeking considerable investment in their businesses, and those with an international arrangement and cross-jurisdictional consideration. Different NDAs should be used depending on the nature and scope of the material itself, to whom you are disclosing/receiving the material, and the reason for needing to disclose or receive the confidential material.