Write the Confidentiality Agreement according to what must be protected

When it comes to intellectual property rights and patent rights, there are some things that are covered implicitly at the inception of the product or idea, and there are some that require an established filing of articles that would recognize the entity as belonging to someone. During negotiations is not the time to be skimping on these. In fact, if there’s no NDA (non-disclosure agreement) in place prior to the meeting, re-consider it. That’s how important protecting trade secrets has become.

What happens in negotiations… Stays in negotiations with A confidentiality agreement

When the conversation about entering a business partnership progresses, at last, from a friendly dinner to a boardroom with several key players, that’s when a confidentiality agreement should be signed. Protecting trade secret information is not reserved solely for well-established brands, works or products. It’s also for smaller businesses about to be acquired by a bigger organization; when hiring and vetting senior, C-suite or top-tier executives who will come into contact with sensitive company information; and even when subcontracting with IT specialists or freelancers. Companies are well within their rights to ask individuals interacting with this information — now or in the future — to sign an NDA. This is especially important in the digital age, where what is covered by a confidentiality agreement is now broader in scope and often intangible (for example, proprietary code for software).

NDAs Are a Pre-Nup for commercial agreements

Sure, ideas are cheap. And there’s nothing new under the sun, but that doesn’t mean that new creations — inventions, works of art, product prototypes or a strategic and innovative service — should not be protected by a confidentiality agreement. It’s not only the process and content of negotiations that a confidentiality agreement protects.
When being drafted, this document can place the holder under an essential gag order, so that they cannot even speak about the proceedings to those not in the negotiations at the time of negotiating.

A word to the wise about accepting online signatures: this has become an accepted and even preferred practice, especially when dealing with subcontractors or agencies on projects. Online signatures in the form of an ‘I Accept’ button are tricky, because individuals can claim that they didn’t know what they were accepting, and it was simply a flurry of papers embedded in an email. Make sure they can sign and print out the signed copy by both parties.