What is an NDA and when should I use one?
The reality is that most businesses (start-ups, struggling businesses, expanding organisations, new product releases, new service offerings, mergers, business sales, etc) need and benefit from external help and support. This may include:
- Advisors – business consultants, coaches, financial advisors, mentors, etc
- Professionals – Accountants, solicitors, banks, insolvency practitioners, etc. Remember that professional advisers are often covered by their own industry standards for confidentiality – especially accountants and solicitors.
- Service providers – Designers, web developers, printers, marketing agencies, etc
- Others – investors, employees, contractors, partners, suppliers, customers … even personal friends you trust and seek advice from!
The purpose of a Non Disclosure Agreement is to allow you to share ‘privileged or confidential information’ with them on the basis that they understand and agree to the need for confidentiality.
Within an NDA, the parties are referred to as the ‘Disclosing party’ (the person disclosing the confidential information) and the ‘Receiving party’ (the person receiving the confidential information).
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There are plenty of legal arguments that suggest Non Disclosure Agreement’s do not offer powerful protection but the very ‘act’ of requesting an NDA is essentially a signal to the other party that they better behave and this is often enough. Should things go wrong, there are a number of legal remedies including issuing cease and desist orders, formal injunctions and litigation for damages through the courts. Clearly at this point, specialist legal advice must be sought.
What to consider in an NDA:
Specifically, what information it covers – is it written, communicated verbally, visual documents, etc. You would also expect the NDA to outline the scope of the confidential information, obviously without any actual detail at this point.
How you are restricting the information – the narrower the better, you can always open it up later.
Who the NDA actually covers – once you’ve shared your confidential information, what about their own advisors, employees, agents, suppliers, customers, etc
Duration – your NDA will specify a time limit on the demand for confidentiality and you can determine this period but remember that once the information is in the public domain, the NDA becomes redundant.
Jurisdiction – if you’re sharing confidential information with someone outside England (i.e. Scotland, Europe, etc), you should specify which law governs the agreement.
Timings and use of an NDA:
You should not discuss anything confidential prior to the Non Disclosure Agreement being agreed and signed. We would always encourage you to share the NDA document PRIOR to any meeting to allow them to read and consider the terms carefully and to ask any questions they have as a result.
You also need to ensure that the ‘right person’ signs the NDA … they must be a director or officer of the company or a person sufficiently senior and with the full authority to sign the NDA.
Once you have a signed document, you should ensure all meetings are recorded and all other documents that you share are also formally acknowledged (signed) by the recipient to prove they understand the information is confidential and covered by the NDA.
Remember, if you want to keep your thoughts confidential then don’t tell anyone! However, if you want the genuine protection of a Non Disclosure Agreement, seek expert advice rather than relying on a pre-prepared template. If you simply want to ‘remind’ people to keep things quiet then a generic template should be acceptable but it offers little true protection.
Simple help and advice from Yorkshire Powerhouse
Now you’ve read our article on NDA’s – have you any more questions?
Here at Yorkshire Powerhouse, we’re happy to help as much as possible – is there anything else we can do to help you or do you have any further questions – please let us know:
No two businesses are the same and it is therefore important that your terms & conditions reflect your specific business needs. Read >