Solicitors for a Confidentiality or non-disclosure agreement

There terms confidentiality and non-disclosure are often used interchangeably. The main difference between the 2 tends to be that confidentiality agreements are more associated with employees and Non-disclosure (NDA) Agreement is a term more associated with dealing with external 3rd parties such as where a joint venture may be under consideration, private equity investment or consideration of an invention or valuable IP.

If you need a lawyer to draft or advise on a confidentiality or Non-disclosure Agreement we can assist. We’ve dealt with many of these agreements and can quickly get the right agreement for you or where appropriate flag up legal risks or unusual clauses.

When is information confidential?

A well drafted confidentiality agreement will establish clearly what confidential information is and what the recipient of that information can and can’t do with it. The underlying law in England & Wales is generic in nature which is a good reason to be specific contractually.

In today’s fast moving electronic age, thought also needs to begiven to how and where confidential information is stored, how it’s accessed and when and to whom it might be passed on or not. With employees, this can be a minefield, with the rise of home or remote working.

In the employment context there’s also the issue of legal confidentiality obligations that may not directly create business risk. GDPR is the obvious example. Your business will be at great risk if your employees are not aware of and contractually required to comply with GDPR obligations.

 Non-disclosure Agreements

Typical uses of non-disclosure agreements include :-

  1. Seeking external investment or when selling your business – 3rd party investors or buyers will inevitably want to access important information such as accounts, customer data, IP, staff information.
  2. Bringing in consultants, suppliers, agents or distributors – inevitably, to do their job they will need access to confidential, business sensitive information and know how.
  3. Intellectual Property – to exploit your IP, you may need finance or external assistance. Make sure your creations or database are fully protected.
  4. Senior staff – especially directors.

Important considerations with an NDA

For all the reasons described above, having a well drafted non-disclosure agreement is really important for your business. However, practical action to protect your vital assets is equally if not more important. We recommend :-

  • wherever possible release information in stages and only when strictly necessary. If the recipient breaches the agreement, better that you find out before making full disclosure.
  • Can you ensure that the information or data is only seen by the recipient? What if they can make copies? What if they need t show it to other people? Do you need to get others to also sign your NDA?
  • If you are dealing with a company, are you protected enough if it is signed only on behalf of that company? Ensuring that a recipient signs in his or her personal capacity, making them personally liable, offers far more reassurance.
  • Return of information – how will you get it back, how will you know it hasn’t been distributed elsewhere or copied?

If you need advice on or a confidentiality agreement or NDA prepared, get in touch with our solicitors for a discussion and costing.

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