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==Basic structure of a [[non-disclosure agreement]]==
===What ''should'' be in an [[NDA]]===
'''Who is who?''' <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.
*Who is disclosing, who is receiving, or is it mutual? <br>
 
'''What is the {{confiprov|Confidential information}}?'''<br>
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:
*What  counts as {{confiprov|confidential information}}, and what doesn’t? (Usually things which (a) are in the public domain; or (b) the {{confiprov|receiver}} already knew; or (c) the {{confiprov|receiver}} obtained elsewhere, or (d) the {{confiprov|receiver}} develops independently).
'''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>
'''{{confiprov|Purpose}}'''<br>
*'''The confidential information''': What  counts as {{confiprov|confidential information}}, and what doesn’t? <br>
*''Why'' are you disclosing the {{confiprov|confidential information}}? What is the [[project]]?<br>
*'''The Purpose''': ''Why'' are you disclosing the {{confiprov|confidential information}}? What is the [[project]]? <br>
'''Who can the receiver share {{confiprov|confidential information}} with?''' <br>
*'''The confidentiality obligation itself''': How is the receiver expected to keep it secret? Who can the receiver share with? On what terms? <br>
*Which of the {{confiprov|receiver}}’s personnel? Are any external personnel allowed to have it, and on what terms? <be>
*'''Mandatory disclosure beyond the “Purpose”''': What about compulsory disclosure under legal process, statutes and regulations?<br>  
'''The {{confiprov|confidentiality obligation}} itself''' <br>  
*'''Term''': How long does the confidentiality obligation last?<br>
*Usually to keep the {{confiprov|confidential information}} (and the [[project]] itself) confidential,  maintain information barriers etc, to use it only for the permitted {{confiprov|purpose}} and to return (or destroy) it at the end of the [[project]].
*'''Other''': Representations and warranties, governing law, And for God’s sake WHATEVER YOU DO DON’T FORGET THE [[Counterparts|COUNTERPARTS]] CLAUSE.
'''When can the {{confiprov|receiver}} disclose {{confiprov|confidential information}}, and to whom, ''beyond the {{confiprov|project}}'''''? <br>  
===What ''shouldn’t'' be in an NDA===
*Usually on a regulator’s request, during dispute resolution, and there may be some conditions
The following often make their way into a confi agreement, though none really have any business being there.
'''How long does the confidentiality obligation last?'''<br>
*An [[exclusivity clause]]
'''Other'''<br>
*A [[non-solicitation clause]]
*Representations and warranties? Governing law? And for God’s sake WHATEVER YOU DO DON’T FORGET THE [[Counterparts|COUNTERPARTS]] CLAUSE.
*An [[indemnity]]

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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