Non-Disclosure Agreements (NDAs) are used to protect your confidential information, which is why they are also called Confidentiality Agreements.
When should you use Non-Disclosure Agreements?
Of course the best way to keep something confidential is not to disclose it in the first place, but we understand that you may need or want to tell certain people about your business ideas such as investors, potential customers, insurance brokers or marketing agencies. There are a few essential elements of an NDA. Firstly, you need to be clear about the purpose of the NDA, so what information do you want protected by the agreement and why? Secondly, how long do you want the period of confidentiality to last, some information such as customer lists should ideally be protected forever. Thirdly, you should detail those people who can access the confidential information, subject to the terms of the NDA, and this should be on a need-to-know basis and is likely to include key personnel and managers but also third parties who would also need to sign up to similar terms of confidentiality. If you only want to protect your information then a one-way NDA is sufficient, however mutual NDAs where both parties to the agreement can disclose their confidential information to each other are more common.
Information that cannot be protected
Non-Disclosure Agreements cannot protect confidential information that is already lawfully in the possession of the receiving party prior to them signing your NDA. An NDA cannot protect information that is already in the public domain or information that becomes available to the receiving party on a non-confidential basis from a third party source other than the disclosing party. An NDA also excludes information that is required to be disclosed by any law or order of a court of competent jurisdiction, recognised stock exchange, regulatory authority, governmental department or agency, provided that prior to such disclosure the receiving party consults with the disclosing party as to the proposed form, nature and purpose of the disclosure; or any information that is approved for release by written authorisation of the disclosing party.
Non-Disclosure Agreements are legally binding documents and whilst they are designed to help protect your confidential information, it is important that you know who within your organisation is signing them. It is not unusual for companies to allow their employees to sign NDAs but this is dangerous, you should have a formal process for these agreements that involves a lawyer or senior manager within the business.