Provided by: Jennifer Kirschenbaum, Esq.
October 5, 2017
I am starting to get ready for sale and wanted to know what the main elements I should watch out for in a non disclosure agreement.
First, I don’t recommend dabbling in contract work, so I recommend you ask me to draft a non disclosure agreement for you, or review one you receive. Second, I appreciate the honest inquiry and am happy to highlight some basics I look for when reviewing an NDA. Now, just because I will throw out a few mentionables here, does not mean you have a DIY manual to NDAs; our First point remains the best advice. When reviewing a non disclosure agreement I want to make sure the other party (not my client) is bound by the contract, along with their representatives, employees etc. I check that any non public information the other party receives from you will be considered Confidential Information – not just materials you may mark. And, as a final point, I make sure the material is to remain confidential for a time frame sufficient that makes discovery totally moot – or in the alternative I require the return or destruction of all Confidential Information should a transaction not happen. Remedies for breach are tremendously important, as is the state law and venue should a dispute arise. Parties also frequently use an NDA to stick in draconian prohibitions against a party – such as exclusivity periods locking you up from negotiating with other parties. Before you sign, have any NDA you receive, at a minimum, eye balled; NDAs are typically 2-4 pages and take me under 15 to spot check for you and provide feedback and not much longer then that to revise, if needed.