Non-disclosure agreements or NDAs are an essential document that all companies (large or small) should have on hand and ready before discussing commercial projects or partnering arrangements with other parties. In many countries, confidentiality in many ways is already protected by law without the need for a contract or deed but like any unwritten arrangement, its always safer practice to document the expectations of the parties.
For NDAs, there are uniform clauses with generally accepted positions – so most lawyers can usually review and give a quick opinion in under an hour.
However NDAs sometimes are used in a specific context where a shortform generic NDA might be insufficient or need to include extra clauses. A good example is in the context of IP commercialisation or M&A opportunities. These contexts require extra questioning of the usual issues and what obligations are appropriate for the discloser and the recipient:
- how is confidential information” defined? what is included and excluded?
- how long does the NDA last?
- what is the permitted purpose of disclosure?
- what persons can the information be disclosed or distributed to?
- for M&A, is there a standstill clause?
- does IP creation need to be covered off at the NDA stage?
- in tech contexts, are there export compliance obligations?
