Why and How Your Business Should Use A Non-Disclosure Agreement

Why:

A non-disclosure agreement (NDA) helps to protect your business’s confidential information from being disclosed by a third party. ExecSense examines the most up-to-date information on the key terms to make sure they are indluded (or not included) in your non-disclosure agreements. We also aid in getting the negotiation strategies and understanding how other General Counsel are protecting their company from a legal standpoint by updating their NDAs.

Professional Perspective:

I have worked with a number of businesses and in-house counsel through a variety of deals, and I can tell you that many times very sensitive information is exchanged in the process. Whether the information is customer based, pricing related, or relates to some other key strategic plan for your business, it’s important to ensure this information is protected. Why? Well, I have also watched potential deals fall apart and without a non-disclosure agreement in place that had some ‘teeth’ to its protective provisions; there was always a risk that information could be used to benefit the party that received your business’s information. 

Overview:

A signed NDA helps your business by establishing the terms for:

  1. What confidential information may be exchanged
  2. The limited circumstances by which the receiving party may use that confidential information
  3. What happens if a party breaches the NDA?
  4. The return or certified destruction of your business’s confidential information

NDAs typically preclude a party receiving any confidential information from any disclosure without the owner’s express written consent. Further, a NDA should provide for not just monetary damages if there is a breach by the receiving party, but should also provide for equitable remedies as well (such as a court injunction to compel the receiving party not to disclose any of your business’s confidential information).

Information your attorney needs to prepare the NDA:

As business owner or general counsel, you should have a good understanding of what information is critical to your business and what must be protected in any strategic discussion. That information should form the basis for what you want to protect. If your business is going to ‘fully open the kimono’ then let your attorney know this too as there are ways to broadly describe the confidential information exchanged so that your company’s interests are protected.

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Draft NDA: What do you do next?

Once you have approved your attorney’s draft, the NDA should be sent to the other business for their review/comment. The two sides will work together to reach mutually agreed-upon terms. Once terms are finalized, the next step is to sign the NDA! hopefully, this is the last time you see the agreement because both sides do what they are supposed to do. However, if you have concerns about the other side failing to adequately protect your business’s confidential information, you will have the NDA as the starting point for:

  • Compelling them to perform, and/or
  • Going to court and seeking to have the court assist in protecting your rights under the NDA.

I strongly encourage you to use a written NDA for all of your business’s strategic discussions, including those with prospective customers and sales agents! If you have any questions about NDAsor are wondering what other contracts your business should have in place, give me a call. I am happy to discuss your business’s legal needs.

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About The Author

Rob Turner
Principal, InTown Legal, LLC
Expertise
Corporate & Commercial Law

Rob Turner

Rob is a business owner’s “secret weapon.” He brings a creative mindset to the clients’ challenges and produces agile solutions under pressure. Rob is a full service commercial attorney and business adviser who thrives in helping his clients solve their business and legal challenges.

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His practice focuses on corporate and commercial law, commercial real estate (including communications infrastructure: cell towers, roof top antenna, DAS, data center and related matters), mergers and acquisitions, and technology licensing and contracts. Rob’s legal skills were honed through a unique blend of prior work in larger regional firms, serving as in-house counsel and, most recently, working with a well-respected Atlanta technology and venture capital law boutique.

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