NDAs or as they have otherwise come to be known as Confidentiality Agreements or Trade Secret Agreements, are legally binding contracts that bind either one or multiple parties. The Agreement protects confidential information from being disseminated to the public at large or being used or assimilated by signees. In circumstances where parties are required to disclose confidential information it is advisable to enter into an NDA to protect your rights and interests.
Who can and how many parties can enter into an NDA?
An NDA can be entered into unilaterally, wherein one party is presenting their business plan, idea, design, concept or proposal to another, either as an individual, company, larger corporation, banking institution, Non- Profit Organisation or Government Department in terms of an application or a tender. When presenting the confidential information, it would be advisable to have the party to which you are presenting sign an NDA to protect your rights and interests to safeguard your hard work and effort in creating and/or developing the confidential information.
The Agreement can also be entered into bilaterally or multilaterally, this often occurs in instances of Joint Ventures, wherein both parties or more are presenting their confidential information to be used as a conglomerate. In such circumstances all parties would sign an NDA to safe- guard their own confidential information from being disseminated, used or assimilated by the other parties and vice versa.
Firstly, the type and scope of the confidential information which one would want to protect. A business plan, music score, architectural design, software or app coding would need to be specifically stated so that should a party breach the NDA, it would be clear to any reasonable person what the NDA was specifically drafted to protect.
Secondly the time frame the information is to remain confidential would need to be stated. This can either be in the form of a specific date, a time period from once the NDA is signed or upon the conclusion of a specific event. This would ensure that the confidential information one seeks to protect would be held so till such future time or event.
Thirdly the specific parties to the NDA are named so that the specific person or if it is an entity, the entity and all its employees, are held to the terms of the NDA. It is vital to ensure that the employee or representative of the entity holds the necessary authorisation to carry out such discussions and to bind the entity to the NDA.
Concluding an NDA
In reality when presenting a confidential information to a larger corporation or Government you are not in the authoritative position to negotiate should they refuse to sign an NDA. As a small to medium size enterprise (“SME”) one is often reliant on acquiring such business, panel application, tender or investment from the larger corporations.
If you have not already Copyrighted or Patented your idea it is best to have your confidential information recorded with a date and time stamped. In terms of music scores as an example, making a copyright application would provide a record of the date and time when the application was made till such time as the copyright is authorized, prior to this sending the score by registered mail to oneself therefore having the post office’s seal recording the date and time when posted.
Presenting a NDA for signature even if refused illustrates your intention to protect your confidential information wherein you can state that the information to be presented is done so under strict terms of none disclosure.
It would be in your best interest in such circumstances to only present a demo or wholistic view of your design or business plan. In terms of an app, presenting the interface of the app and what it is designed to carry out for a client wherein the specific coding thereof is not presented to the parties. This would ensure that the design could potentially be replicated but the inner working on how the app works are not disclosed.
Creating and developing a business plan, design, app or music score takes many hours of hard work not to mention conceptualising the idea itself. Such information should be held confidential and should be safeguarded against being disseminated, used or assimilated by other parties. When negotiating or making an application it is vital to protect your rights and interests, having a NDA drafted would better enable you to protect your rights and interests in your confidential information. Contact an Attorney at SchoemanLaw Inc. to assist you in protecting your rights by drafting a NDA today.
This article was written for Workshop17 by Peter McRae-Samuel, Attorney at SchoemanLaw Inc
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