A Non-Disclosure Agreement (NDA) would be appropriate when you have information that you may only wish to tell someone else if you have a contract enforceable in Court regarding how they treat that information. Non-Disclosure Agreement, its acronym NDA, and terms including Confidentiality Agreement, all generally mean the same thing.
In our experience, many lawyers do not have sufficient familiarity with the basic law of confidence to produce an appropriate NDA form. We commonly encounter NDA forms which are vastly too complicated. Don’t fall into the trap we have often witnessed, of the inappropriate presentation of an overblown NDA wrecking business relations before they have even begun.
Please be aware that no contract can enforce confidentiality if the subject is not confidential. Information is only confidential if it is known only to persons who have the right to enforce duties of confidence in that information - either because they devised it, or because they entered into an NDA themselves with such a person. If information has been either published without any duty of confidence being agreed or is otherwise not secret, then no confidentiality agreement can be enforced.
English law will imply the two basic duties of confidentiality to a disclosure made in circumstances of confidence: (1) the duty not to disclose and (2) not to use for any purpose apart from the purpose for which the disclosure was made. It is therefore not absolutely necessary to enter into a contract for the basic duties of confidentiality when a disclosure is made in circumstances of confidence. This would normally be implied in any business relationship. A written agreement concerning such disclosure does still serve some useful purposes and we would generally recommend entering into one when the following purposes are important:
- Making it clear that the disclosure is one to which a duty of confidence is intended to apply
- Defining both what is being disclosed and the purposes of that disclosure
- Controlling the treatment of the information, in particular the right to call for destruction of records of it
- Mutually agreeing certain legal remedies that might influence the Court in your favour
- Setting up the so-called “Springboard” right to prevent competition after confidence may have expired that could be unfair on you in the context of the disclosure.
Our NDAs are in the form of a letter, so that they are effective even if they are not returned counter-signed. We ensure that our NDAs are concise and simple - you will understand them easily and reasonable commercial partners will not baulk at receiving one.
How long will it take?
We would expect to complete an initial draft of the NDA within a week of taking your instructions. Special dispatch may be available where necessary at an extra charge.