Non-Disclosure Agreement (NDA) lawyer
Oak Brook Confidentiality agreement lawyer
A non-dislcosure agreement (NDA) is a contract for confidentiality between two parties. NDAs are used in many contexts such as for the initial discussions in a business acquisition, before a business hires a vendor, or anytime parties want to discuss a business transaction before committing to doing business.
NDAs are useful to build trust between parties and hold anyone accountable. Before doing business, business parties typically share very sensitive information such as client lists, financial details, and intellectual property. If confidential information gets leaked, it could cause irreparable harm to a business. For this reason, it is important to be clear as to what information is considered confidential, and what a party’s remedies are in case of a violation of an NDA.
Many people and businesses make the mistake of just using a template NDA, and do not consider their specific circumstances. Also, different templates can favor one party over another, and without knowing your rights and responsibilities, you may be signing an NDA that does not protect you.
Contact us to help you with your NDA so your business is protected. We serve businesses in Oak Brook, Burr Ridge, Naperville, Hinsdale, Lombard, Addison, Downers Grove, Oak Park, Darien, Chicago, Lisle, Westmont, Willowbrook, Clarendon Hills, and the Chicagoland Area.
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Common Elements of an NDA
There are two categories of parties in an NDA: 1) the “disclosing party” and the “receiving party.” Each party will want to negotiate an NDA different based on which party they are.
When negotiating a NDA, common considerations include:
- Clearly identifying the parties: Too often, NDAs will have terms requiring people to keep the information confidential without those people being parties to the NDA. This will render the NDA unenforceable for those people.
- A clear definition of what is considered confidential: A disclosing party may be tempted to identify “everything” as confidential, but that is a poor strategy and a receiving party would not want that liability, and may not sign the NDA.
- Parties’ obligations regarding confidential documents after the transaction is over: If you are a disclosing party, you may want to require the receiving party to return or destroy any confidential information received.
- Notice in case of a leak: Disclosing parties want to know if a receiving party leaks confidential information so it can take immediate action, and a clause obligating the receiving party is a good idea.
- Term of obligation: It is a liability to a receiving party if the confidentiality term is too long, and protection for the disclosing party. It’s important to determine how long a disclosing party can seek remedies.
If you are a receiving party, you want to be careful to not sign an overly broad NDA that puts too much liability on you. The disclosing party will want to make sure its rights are protected. This is why it’s important to tailor an NDA to each situation.
What does not belong in an NDA?
Whether on purpose or not, we’ve seen parties try to sneak in other terms in an NDA. Remember, the purpose of the NDA is to protect confidential information. You do not want it to add additional obligations.
Sometimes a party tries to sneak in non-compete provisions. For example, if a business wants to hire a vendor to create a website, and asks the vendor to sign an NDA, sometimes the business will ask the vendor to not service the business’ competitors, even if the parties ultimately choose not to do business with each other. You do not want an NDA to include non-compete provisions unless that is what both parties really need.
Another example of sneaky terms is when the parties are contemplating a joint venture or other business deal, and one party starts to include other terms of the business deal like pricing, duties, or other obligations. Other than the fact that may be too soon to have those discussions, those terms are better suited for a separate contract.
These sneaky terms are also in template NDAs. This is all the more reason to not sign an NDA without consulting a business law attorney.
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What Our Clients Say
NDAs are binding. However, courts do consider how the parties treat their confidential information. For example, if a disclosing party is wreckless with its own confidential information, a receiving party may argue that the information was not really confidential and it should not be held liable in the case of a breach of the NDA.
Absolutely. Don’t let anyone tell you that the NDA is just “standard.” There is no such thing as a legally standard contract.
Generally speaking, major terms of a LOI are negotiable. However, how much bargaining power a party has is determined by its leverage over the other party in negotiations.