Confidentiality agreement

NDA Anatomy™ JC’s guide to non-standard confidentiality agreements. For the OneNDA, see the OneNDA Anatomy →Go uptown My Confidential Heart Words and Music by R Plant Baby, baby, baby (ad lib) If you want me to tell you Everything I know Some things you gotta promise me Babe, you gotta show — Whatever may happen Or come down on your head You won’t break my confidence Or tell them what I said. (Listen — Do you want to know a secret? Do you promise not to tell?) & when I say my “Secrets” This is what I mean: Everything I tell you About everything I’ve seen & everything I show you & everything I knew & everything I’ve told you About everything I do. I don’t mean no other things — Not what the whole world knows Not what another man has said That’s not the way it goes & baby, there’s one other thing You can cut out & save: Though you may take The Secrets that I tell you To your grave, I never promised anything I told you Would be true I never said to no-one That I’d never lie to you. Tell me that you will, my baby That you’ll do what you can To keep my secrets safe & sound & not tell another man You can maybe tell your mama & tell your daddy too & tell your regulator If he tells you you have to But before you spill my Secrets (That you promised to the grave) You gotta let me know So I can go & force them to behave Now things may change & we may change — Our love no more be true. If it should fail & break apart Here’s what you’re gonna do: You’re gonna send it back You’re gonna hand it back You’re gonna give it back to me (But you may choose To put beyond your use The stuff you can’t unsee) I ain’t granting you no licence Ain’t pledging you no right & if we should ever quarrel If we should ever fight If there’s ever tension That lovers can’t resolve There’s a place the I can take you To make our differences dissolve It ain’t no arbitration It ain’t no arbitrary thought It’s the chancery division Of an English court. So if you want to hear me squeal Sign on the dotted line & I’ll open my whole heart to you One vein at a time. Resources: Confidentiality agreement | Confi — Led Zeppelin style | GDPR | Copyright vs. confidence | OneNDA | Common terms | Certification | Confidential information | Confidentiality obligation | Derived information | Disclosed information | Discloser | Exclusivity | Indemnity | No licence | Non-solicitation | Permitted disclosees | Permitted disclosures | Procure compliance | Purpose | Receiver | Remedies | Reps and warranties | Return of information | Term of confidentiality | Index: Click ᐅ to expand: Confidentiality OneNDA Tell me more Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

Also known, to those for whom the glass is half-empty, as a non-disclosure agreement. An agreement whereby you promise not to tell. If Robert Plant were writing one, he would write it like the box on the right.

Anyhoo. Here are the main parts of a normal financial markets confidentiality agreement.

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.

• An exclusivity clause
• A non-solicitation clause
• An indemnity

What’s in a confi?

Confis can be “one way”, where one party discloses and the other receives, or “two way”, where both parties disclose sensitive information. A broker’s template will tend to be far more generous when it is receiving only, than when it is giving information up. I know this may come as a shock to some of you.

Length

Firstly, 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 confi, not the sale of your soul. Oh hang on. Template:Copyright and confidence

Representations and warranties in a confidentiality agreement

Assiduous attorneys will drivel in some of the usual boilerplate reps, to no obvious point, but for the most part confidentiality agreements are characterised by the representations the parties are not making to each other. Thus, this is another one for the “I never said it was” file, a clear disclaimer that when giving you this information, I never said it was accurate or good for anything. So you can’t sue me if you rely on it and lose money. So must your NDA have a term? Some insist on a hard stop, say two years, after which confidential information ceases to be confidential. This seems to us to be artificial. Others may mediate this by “execution of final transaction documents”.

It is not clear why going live on a transaction should suddenly set the negotiating parties free to spill private beans about each other that they learned in its formation. The theory is possibly that the final deal docs will themselves contain confi provisions which will be more sophisticated and can govern — but at least in the derivatives world, typically they don’t. Go figure.

Why have a term at all?

Good question.

Many negotiators declare themselves immutably bound to a term, usually by internal policy. They would sooner be broken upon a wheel than let this one go. This policy, they will intuit, dates from the days of the First Men, possibly was the result of a misunderstanding, but in any case subsequently has hardened, encrusted, calcified, petrified, and finally fossilised itself into a layer so deep in the firm’s organisational substrate that there is no known means of questioning it. In the very act of questioning it invites some kind of opprobrium. If anyone ever did really understand what the issue was, they have long since moved on, or been moved on, and no-one remains who can recall, much less articulate the original reason for this policy, or why it is still needed now.

Furthermore, in the ensuing thirty odd years, generations of employees have left that firm (some voluntarily, many not), taking this deep personal conviction with them, and have circulated the market, wherever they go inculcating a strong sense that some ineffable calamity would befall them, their firm, the market or, indeed, the entire industry should this sacred covenant ever be breached.

Thus the “mandatory confidentiality term” has now become part of the folklore of the financial services markets. You have to have a term, and it can’t be longer than two years at the most.

Now perhaps the JC is that long-prophesied seal of the forthcoming apocalypse (actually that might explain a few things, come to think of it) but, personally, he has never been able to understand what this “term” covenant could possibly achieve? Why, after a couple of years, should I suddenly be entitled to blare all your darkest secrets out from the minarets around town, without so much as a by-your-leave?

While the commercial value of much information does go stale over time (blueprints for a BetaMax, anyone?), this isn’t universally true — a client list is valuable however long you hold it — and the usual justification for the hard stop (“we just don’t have the systems to indefinitely hold information subject to confidence and don’t want indeterminate liability for breach”) is a canard — a palpably false one at that, for a regulated financial institution. Whatever information security systems you do have don’t suddenly stop working after three years. And as for indeterminate liability — well, no harm no foul: if the information really is stale then no loss follows from a breach, right? No loss, no damages.

In any case, it seems to the JC that a term creates more questions than it answers. When does it run from? The date of the NDA itself, or the date of disclosure of the information in question? If the former, and the point is to exclude stale information, why is the NDA date a relevant point? If the latter, who is monitoring what is disclosed when? What is meant to happen when the term expires? Why are we even having this conversation?

What a confi shouldn't have

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

• An Exclusivity clause
• A Mon-solicitation clause
• An indemnity

Special AKA

The same as a:

• Non-disclosure agreement
• NDA
• Confi

See also

• Confidence
• Confidentiality Agreement - Rock 'n' Roll Style
• Copyright
• Patent