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===Basic structure of a [[confidentiality agreement]]===
===What ''should'' be in an [[NDA]]===
1. '''Who is who''': who is disclosing and who is receiving, or is it mutual? <br>
Let’s be blunt about this: there is a special place in hell for [[legal eagle|any advisor]] who serves up a confidentiality agreement more than 3 pages long. Even three pages is purgatorially tedious. GET TO THE POINT. It’s a goddamn [[NDA]], not the sale of your soul.
2. '''The {{confiprov|Confidential information}}: what is it?'''<br>
 
:(a) What generally counts as {{confiprov|confidential information}}?
For those of you who can’t see your way clear to embracing the [[OneNDA]], and who have not yet been asked to [[get your coat]], here are the basic things it needs to cover:
:(b) What is excluded from that general definition? Usually along material which:
'''Who is who''': Who is disclosing, who is receiving, or is it mutual? Mutual is good — as it plays to the idea that this is fair, but sometimes you want to just get across the line quickly, by offering confidentiality, without requiring it. That way, for example, you can just sign without seeking ''assent''. <br>
::(i) is in the public domain
*'''The confidential information''': What counts as {{confiprov|confidential information}}, and what doesn’t? <br>
::(ii) the {{confiprov|receiver}} already held before disclosure
*'''The Purpose''': ''Why'' are you disclosing the {{confiprov|confidential information}}? What is the [[project]]? <br>
::(iii) the {{confiprov|receiver}} receives independently, without breach of confidence
*'''The confidentiality obligation itself''': How is the receiver expected to keep it secret? Who can the receiver share with? On what terms? <br>
::(iv) the {{confiprov|receiver}} develops independently, without reliance on the {{confiprov|confidential information}}
*'''Mandatory disclosure beyond the “Purpose”''': What about compulsory disclosure under legal process, statutes and regulations?<br>
3. '''{{confiprov|Purpose}}: What is the purpose of disclosing the {{confiprov|confidential information}}?'''<br>
*'''Term''': How long does the confidentiality obligation last?<br>
4. '''{{confiprov|Receiver}}s: who is allowed access to the {{confiprov|confidential information}} ''for the {{confiprov|project}}'''''? <br>
*'''Other''': Representations and warranties, governing law, And for God’s sake WHATEVER YOU DO DON’T FORGET THE [[Counterparts|COUNTERPARTS]] CLAUSE.
:(a) Which of the {{confiprov|receiver}}’s personnel can access the {{confiprov|confidential information}}?
===What ''shouldn’t'' be in an NDA===
:(a) Are there any external personnel with whom the {{confiprov|receiver}} can share {{confiprov|confidential information}}?
The following often make their way into a confi agreement, though none really have any business being there.
5. '''The {{confiprov|confidentiality undertaking}} itself''' <br>
*An [[exclusivity clause]]
:(a) To keep the {{confiprov|confidential information}} confidential; maintain appropriate information barriers etc.
*A [[non-solicitation clause]]
:(b) To use it only for the permitted {{confiprov|purpose}}
*An [[indemnity]]
:(c) Not to reverse engineer, decompile or disassemble {{confiprov|confidential information}}
:(e) To keep the project confidential
:(e) Return or destroy confidential information at the end of the project
6. '''Under what circumstances can the {{confiprov|receiver}} disclose {{confiprov|confidential information}}, and to whom, ''beyond the {{confiprov|project}}'''''?
:(a) Regulator’s requests
:(b) During dispute resolution processes
:(c) Any conditions on “extra-projectual” disclosure
7. '''Term of the confidentiality obligation'''<br>
8. '''General''' <br>
:(a) What {{confiprov|representations}} does the discloser make?
:(b) What {{confiprov|acknowledgments}} does the {{confiprov|receiver}} make?
:(c) [[Governing law]]

Latest revision as of 09:22, 17 September 2021

What should be in an NDA

Let’s be blunt about this: there is a special place in hell for any advisor who serves up a confidentiality agreement more than 3 pages long. Even three pages is purgatorially tedious. GET TO THE POINT. It’s a goddamn NDA, not the sale of your soul.

For those of you who can’t see your way clear to embracing the OneNDA, and who have not yet been asked to get your coat, here are the basic things it needs to cover: Who is who: Who is disclosing, who is receiving, or is it mutual? Mutual is good — as it plays to the idea that this is fair, but sometimes you want to just get across the line quickly, by offering confidentiality, without requiring it. That way, for example, you can just sign without seeking assent.

  • The confidential information: What counts as confidential information, and what doesn’t?
  • The Purpose: Why are you disclosing the confidential information? What is the project?
  • The confidentiality obligation itself: How is the receiver expected to keep it secret? Who can the receiver share with? On what terms?
  • Mandatory disclosure beyond the “Purpose”: What about compulsory disclosure under legal process, statutes and regulations?
  • Term: How long does the confidentiality obligation last?
  • Other: Representations and warranties, governing law, And for God’s sake WHATEVER YOU DO DON’T FORGET THE COUNTERPARTS CLAUSE.

What shouldn’t be in an NDA

The following often make their way into a confi agreement, though none really have any business being there.

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