Considering Sale, what are the main points of a non disclosure agreement?

Provided by:  Jennifer Kirschenbaum, Esq.

October 5, 2017

Question:

Hi Jennifer, 

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.

Thanks,
Dr. P
 
Answer: 

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.