The Non Disclose Agreement

On all new potential business engagements, one of the biggest blockers to communication is the ease of access to information.

A prospect will always baulk at giving confidential information, even when it is vital to allow a vendor or consultant to provide a solution. Time and valuable communication are often lost and many times even the opporunity when the simple solution may be to just sign a non disclosure agreement so you can keep talking.

In most cases when I suggest this things start to move along. But then there is the issue of whose NDA form do we use. As people head for the legal department it has the poterntial to stall again. So to make it easy,  I offer ours and often times it is enough and does the job well.

There are any number of forms around for this  For example has some good formats to check for various scenarios Here is one we use that we find has quite simple language and works for us. Please feel free to give it a try or give me some feedback.

This agreement (the “Agreement”) dated _______________is between the undersigned parties being ______________ and _______________.

The purpose is to bind both parties into reciprocal confidentiality agreement and not to disclose each others information and intellectual property.

In order to facilitate discussions regarding a potential business relationship, each party may disclose to each other information it considers proprietary and confidential. For this agreement the “Provider is defined as the owner party of the information and the “Recipient” the party receiving or obtaining said information from the provider by virtue of the privilege under this agreement This information may be disclosed orally, in writing, on film, on magnetic media, or in some other form.

Confidential information shall include, without limitation: (a) computer programs (either on magnetic media or in written form), technical specifications, software programming techniques, methodologies, ideas, concepts, or interfaces; (b) Information which relates to either parties proprietary software, prototypes, or plans; (c) business, financial, marketing, or sales plans and data; (d) customer information; and (e) other information whether or not identified as confidential (collectively “Confidential Information”). In connection therewith, the parties agree as follows:

1. Each party agrees to hold the other party’s Confidential Information in the strictest confidence and will not disclose the Confidential Information to any third party, except that access to the Confidential Information shall be permitted to those of Recipient’s personnel engaged in a use permitted herein. This includes intellectual property.

2. The obligations of confidentiality shall not apply to any information that: (a) is contained in a generally available non-confidential publication bearing a date prior to the date of this Agreement; (b) is or becomes generally available to the public other than as a result of the improper action of either recipient party ; (c) is rightfully known from a source independent of any restrictions imposed by each party or becomes rightfully known to Recipient from such a source; (d) shall be or has been independently developed by Recipient; (e) is generally furnished to others by each party without restrictions on the receiving party’s right to disclose; or (f) is required to be disclosed by a court of law having jurisdiction over Recipient (provided that Recipient shall notify Provider of the receipt of such an order and shall cooperate with Provider in efforts to limit the extent of information required to be disclosed).

3. Recipient will not, at any time, use the Confidential Information in any fashion, form, or manner, except to facilitate discussions of its business relationship with the other party.

4. Confidential Information may not be copied, reproduced, or reverse engineered, without either party’s prior written consent.

5. Confidential Information shall at all times remain the sole property of the originating party. Recipient party shall have no license, ownership rights, or any other rights or interests in Confidential Information or any of the originator party software, documentation, or other products, unless otherwise agreed to in a separate written agreement between the parties or between the Recipient and or authorized subsidiary or associate of either party.

6. Confidential Information disclosed by either party, including copies thereof, shall be returned to owner upon request by that owner party. All confidentiality obligations shall survive the termination of this Agreement and the return of Confidential Information.

7. The parties agree that injunctive relief shall be an appropriate remedy, in addition to any other right or remedy available at law or in equity, in the event of a breach or threatened breach of this Agreement.

8. The invalidity or unenforceability of any provision of this Agreement shall not in any way affect the validity or enforceability of any other part of such provision or of any other provision of this Agreement, and any invalid or unenforceable provision or part thereof shall be deemed severable to the extent of any such invalidity or unenforceability.

9. This Agreement shall be governed by the laws of all countries including  _________and______________.



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One thought on “The Non Disclose Agreement

  1. Gordon,

    That is a useful tactic for selling. Removing barriers like this help to establish vital trust and confidence. I would think whwn offered in a way that is shows as a salesman you know your job is also to protect everyone’s interests, it would build goodwill too.

    It is also a very useful non threatening next step that engages the prosect to comit to some action and help qualify your sales investment in them as being worthwhile.

    The practical side of your post, the example is easily applied. If I need one I will use this and just add my letterhead.
    Many thanks

    Best wishes

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