NDAs Explained – What You Need to Know (part 1)
NDAs ensure that confidential information is used solely for the specified purpose set out between the parties in a business relationship. In the world of business, where ideas, innovations, financial information and secrets are the keys to success, Non-Disclosure Agreements (NDAs) often play an important role in protecting a company’s confidential information. This article will provide a comprehensive overview of NDAs in the context of Business to Business (B2B) dealings.
What is an NDA?
An NDA, also referred to as a Confidentiality Agreement, is a legally binding contract between two or more parties to protect confidential information which may be shared during the course of their business relationship. More specifically, confidential information is non-public information of a company that could harm the company when it would be shared in public. Usually a list of the Confidential information is included in the NDA, containing for example: trade secrets, know-how, products and technology-related information, discounts, customer lists, sales and financial information, business plans, etc.
Why and when do we need an NDA?
In the B2B context, NDAs can be an essential tool for protecting proprietary knowledge, trade secrets and other confidential data that is important for a company to maintain its competitive advantages. That sensitive information, therefore, should be defined clearly and carefully in NDAs. However, be careful not to define it too narrow to ensure that you have not missed an important category. By using a properly drafted NDA, your company can secure valuable information from competitors or other third parties who may benefit from the disclosure of such information.
Primary objective
The primary objective of an NDA is to ensure the disclosed sensitive information is securely used and handled, preventing its use or disclosure without proper permission and authorization by the disclosing party. An NDA is often signed at the beginning of a business relationship or before entering into a business relationship.
Example
Common example: a technology company is planning to sell and offer specialized software solutions to an enterprise customer. The companies start by discussing how to integrate the software into the customer’s systems to ascertain the price for the integration and the use of the software. For this, the technology company might share insights about their pricing, SLA, policies and software, and the customer, in turn, might explain their challenges and share business plans. While doing so, the companies therefore plan to share documents including non-public, hence confidential information. This is why it is advised that these companies sign an NDA before sharing this confidential information to each other. Such an NDA can be terminated when the parties sign a final customer contract, which should also include confidentiality terms.
How does an NDA protect your confidential information?
Like any other legal contracts, an NDA carries important legal consequences for breach of contract. Depending on the severity of a breach, its consequence can range from lawsuits, financial penalties to – in extreme cases – criminal charges. Breaching an NDA can also harm a party’s reputation, which may lead to other long-lasting consequences to its business, especially in business relationships and industries where trust and confidentiality are crucial.
Claims and lawsuits relating to a breach of an NDA are not common, but it absolutely happens that a company needs to pay out a penalty for breach of confidentiality. We have even advised on this matter a few times in the past.
What type of NDA do you need?
There are various types of NDA that can be used based on the specific circumstances and the needs of the parties involved. Below are the three common types of NDA:
- Unilateral NDA (One-sided NDA): In a unilateral NDA, one party, typically the seller, imposes on the other party the obligation to secure the information and not to disclose or use the information for any purpose other than what is specified in the agreement. In a B2B context, unilateral NDAs are often used between buyers and sellers. For instance, a Biotech company (seller), may employ a unilateral NDA to prevent the buyer from disclosing sensitive information they have gained during the purchase of products or services, such as intellectual property and computer technology. Also common in Public Tenders and for RFI (Request for information) in RFP (Request for Price) situations.
- Mutual NDA (Two-sided or Mutual NDA): A mutual NDA involves two parties, and both parties will be sharing sensitive information with each other and agree that both sides will be bound by confidentiality obligations. Mutual NDAs are frequently used when the parties need to exchange considerable amounts of confidential information during their negotiations or business relationship. Such situations can be Joint Ventures, Vendor Contracts or Mergers and Acquisitions.
- Multilateral NDA (Three or More Parties NDA): A multilateral NDA includes three or more parties, where at least one party shares sensitive information with other parties and enforces confidentiality obligations. This type of NDA streamlines the paperwork and administration for the parties in a sense that the parties do not need to enter several unilateral or bilateral NDAs with one another. In a business relationship involving three parties, where all anticipate disclosing confidential information, a single multilateral NDA can replace the need for three different bilateral NDAs between each pair of parties. Such situations can be Partnerships, Government Contracts (like defense and aerospace contracts) and Consortium Agreements.
Contract Negotiations: How To Avoid Negotiation Peaks? Part 5
As we approach the end of Q3, this week a short message as the pressure is on to review, negotiate and close contracts before end of next week!
To make the end of the Quarter more manageable, lay the groundwork:
1. Early Preparaation and Prioritization
2. Communication & Cooperation
3. Standard Templates
4. Implementation of Legal Tech
However, at the end of the Quarter it will always be busier than normal.
𝗙𝗼𝘂𝗿 𝘁𝗶𝗽𝘀 𝗳𝗼𝗿 𝘆𝗼𝘂𝗿 𝗹𝗮𝘀𝘁 𝘄𝗲𝗲𝗸:
* Prioritize: Focus on high volume and strategic deals that are nearing closure and absolutely need to close this month.
Ask yourself: Is the very important contract you are working on now actually closing next week, or should you pause this deal for now and pick it up again in Q4 because it is actually a Q4 deal? Focus on Q3 deals only when busy.
Check: what are the Top priorities of the company & Sales department? Are you working on the right deals?
* Clear Communication:Keep open and transparent communication with your customers and internal teams. Confirm their (timing and process) needs, address any concerns and reiterate the urgency to reach a final agreement.
Streamline the contract process by collaborating closely with internal teams. Set daily meetings where necessary with clear goals for each day.
* Team Collaboration: The management, sales, legal, and procurement colleagues have to collaborate seamlessly to resolve any last-minute hurdles. Cross-functional teamwork is key to overcoming last obstacles or escalation matters
Avoid solo working on your very complicated deal, but collaborate with internal and external teams to ensure maximum efficiency and alignment to avoid delays.
* Deadline Management: Keep a close eye on deadlines, review the full list of contracts to be signed and requirements (contracts, documents, approvals, etc) and plan a few days ahead – leave room for error. Missing a critical date, signature or document in the last week of the quarter can be costly.
Closing deals in the final week of Q3 is all about focus, prioritization, communication and teamwork. Let’s make this week count and finish the quarter with success!
Contract Template Tip 10: How to Roll Out New Templates Like a Pro
To conclude our series on how to improve your Business Contract Templates, I will share with you the expert steps I advise to use when rolling out your new templates in your organisation.
Having introduced new templates, policies and procedures for more than 15 years as Legal Counsel / Manager in various companies, I have a lot of (too much!) information to share on this complex and multifaceted subject – which I hope will be of great insight to you.
As a business leader, I know how precious your time is. Therefore, instead of packing all my insights into one long article, I have decided to break it down in separate posts which I will share with you in the next weeks.
Examples where you can use these expert tips:
Roll-out of a new template:
– Customer Contract
– Partner Agreement
– Order Form
– NDA (Confidentiality Agreement)
– DPA (Data Processing Addendum)
Introduction of a new policy & procedure that your teams need to follow:
– Contract Procedure explaining all steps in the contract negotiation process
– Contract approval policy
– Legal Involvement Policy (e.g. legal involvement is only approved after completion of a questionnaire and for deals > 100k)
– Vendor Questionnaire Procedure/Handbook
Looking forward to share my insights on this topic with you in the next weeks! If you have any questions in the meantime, do let me know in the comments or in a direct message.
Please see the full list of articles with all steps to take to successfully roll out contract templates in a company::
Tip 8: Consistent terms & definitions in your documents
Make sure that you use the same terms and definitions in your contracts and other important documents. It is also advised to follow the same rule for commercial documents like pitches / offers and even your website.
Why is this Important?
There are many reasons why consistent use of terms in your organization and definitions in your documents. To name a few:
- 1. Consistent use of most used terms in your organization improve efficiency as you will not have to think & have meetings which term or what definition to use.
- 2. It helps everyone understand what is meant exactly by a certain term that you use in your company.
- 2. To create the best possible customer experience.
- 3. To avoid any misunderstanding on what service or product the customer has purchased from you exactly, and under which conditions.
- 4. In case of commercial discussions (and even litigation) about a term in the contract for whatever reason: e.g. exact services purchased (and under which conditions), the price for the service, termination possibilities, volume commitments, compliance and system requirements, etc.
Examples
For a typical SaaS/Software company this means that the same terms/definitions should be used for the following documents (depending on the contractual set-up):
- General Terms and Conditions
- Product Specific terms
- End User License Agreement
- Customer Contract / Master Ordering Agreement
- Order Form / SOW (Statement of Work)
- Annexes likes the Data Processing Addendum (DPA), Data Security Addendum and the Pricing Annex
- Disclaimer on the website
About AMST Legal
At AMST Legal, we provide advice how to improve your (legal) processes and contract templates. Helping you to make sense of all your standard contracts and templates and improving them is part of that. Contact us at lowa@amstlegal.com or book a meeting here for help with your legal (compliance) framework.
Tip 7 – All Contract Standards & Templates in One Place
Create a Central Repository
Remember to store all your (contract) templates in one central place to make sure that everyone is (i) able to find the correct templates quickly and (ii) using the correct template.
Sounds very straight forward, but in reality I rarely see companies that store all templates in one central place easily accessible for all involved team members.
Storing all contract templates in one central place is challenging for most companies, but especially in case of:
- fast-growing companies
- mergers/acquisitions
- activities in multiple countries
- large groups with many subsidiaries or a complicated corporate structure
- contracts in different languages
- involvement of different departments (Account Management, Sales, Partnerships, Sales Operations, …)
What is the Best Way to Make Templates Easily Accessible?
Best options are:
- (a) fully/partly automate your contract creation and be strict that this is the only way that contracts can be generated. This way the relevant, most up to date and correct Contract Template is used and all templates are stored in one spot as you should only be able to use this automated system; and
- (b) create a central place (usually an internal website or – less ideal – a shared folder).
Crucial Step
Give training – at the start of employment and regularly thereafter – to your employees to make sure they know where the contract templates are located and how to correctly use these templates.
About AMST Legal
At AMST Legal, we provide advice how to improve your (legal) processes and contract templates. Helping you to make sense of all your standard contracts and templates and where to store them for easy access to the team is part of that. Contact us at lowa@amstlegal.com or book a meeting here for help with your legal (compliance) framework.
Tip 6: When making your specific contract, start with the correct template
Introduction
Previously in the series “How to improve contract templates”, we emphasized knowing the content of your contract templates. See the full article here: https://amstlegal.com/tip-5-review-the-contents-of-your-templates/. Now we’re zooming in on perhaps the most common issue with contract templates: How the templates are used daily. Because even with all the technology available to automate contract creation, most contracts are still created in word processing software such as MS Word. The templates are often saved in unstructured ways too. Additionally, the people that use the template contracts on a daily basis for a specific customer contract do not always use the correct template, i.e. the latest version, when making a new contract. While simultaneously doing that without using contract automation, unexpected risks can show up later on. Keep reading to learn what risks you could be facing, and how you can manage them.
When making a specific contract, start with the correct template
Why is it so important to start with the correct template?
Naturally, it sounds very convenient to use a contract of another client or the contract template that you have been using for years when making a new contract. However, this is the biggest risk associated with contract creation for companies that do not use contract automation. More time and money will need to be spent on the (re)negotiation of the contract and/or potential mistakes or claims in the future because your contract did not fit with the client or the specific situation. Using the correct template can be a step on the way to minimize encounters with these risks.
How do you minimize this risk?
So how do you avoid the risks connected to not using the correct template? There are many options to minimize those risks. However, we have found from experience that the two best ways to minimize these risks are:
- Fully/partly automate your contract creation and be strict that this is the only way that contracts can be generated; and
- Create a central place (usually an internal website) to store the contract templates, and give your employees regular training.
Unfortunately, the first tip can take some time to set up and requires recources for it to fully work. The pros outweigh that though, so don’t fear the power of technology when making contracts. For the second tip to fully work, we advise to provide training to the employees regularly. For example at the start of the employment followed by regular consistent training after that. This is our standpoint because you want your employees to know where the templates are located and how to use them.
Another tip that could be conjoined with the other two is to make sure that the importance of this is discussed regularly in your team or during company meetings.
Conclusion
To sum up this article, it can make a major difference on the aftermath of your contracts whether the correct template is used or not. Therefore we do advice to invest in good templates and good training for the employees. Doing this will make your contracting process much easier. If you feel like this is something that you would benefit from, contact us at AMST Legal for further personalized advice.
About AMST Legal
At AMST Legal, we provide advice how to improve your (legal) processes and contract templates. Helping you to make sense of all your standard contracts and templates and where to start drafting or using these standards is part of that. Contact us at lowa@amstlegal.com or book a meeting here for help with your legal (compliance) framework.
Tip 5: Review the content of Your Templates
Introduction
This is a follow up on the previous tip 4 to make a full list of all your contract templates. If you want to read that part, follow this link here: https://amstlegal.com/tip-4-make-an-inventory-of-your-contract-templates/. Staying on the same track, we at AMST Legal strongly advise to regularly perform a detailed review of your contract templates. That is part of our tip 5 of the article series “How to Improve Contract Templates”.
Keep reading to learn more about this appraoch.
Review the contents of your templates
Leaning back on the previous tip 3, which builds on cross-departemental collaboration, legal should review the templates – of course together with business – to make sure that the templates are all legally up to date and still work for all products/services that you are offering and cover all business risks. That require knowledge of the content of your templates though. The solution to that is to review your contract templates on a regularly basis.
What the review can show you
Think back to when the company started. In the beginning, the company might used certain contract templates without legal alignment, i.e. templates made by the commercial team or online templates. Another scenario is that the company has changed considerably. Thus, your company’s current needs might not be reflected in the contract templates.
Due to this review you might also find out that you can potentially:
- combine templates to limit the amount of different templates,
- remove templates that are not used, or
- make new templates,
Doing this can further improve the scalability & productivity of your company.
Pro-tip
Certain large corporates that I have worked with even ask an external law firm every two years to do a full review of their templates. That concerns e.g. General Terms & Conditions and Master Ordering Agreement. This ensures that their templates are up to date. It can also show how they generally can improve the templates for the business and their customers.
Conclusion
If you make sure to keep an eye on your templates you can ensure that the content will be up to date, Additionally, the contracting process can be made easier if unnecessary templates are removed.
Do you want to improve your scalability and productivity? Contact us at AMST Legal for tailored advice on how to do this in a simple way.
Tip 4: Make an Inventory of Your Contract Templates
Introduction
Earlier, we provided tips on how legal should not be afraid to involve other departments. You can access that article through this link: https://amstlegal.com/tip-3-legal-involves-other-departments/. Moving on, we are going to dive into the next tip in the series on How to Improve Contract Templates. This tip 4 concerns making an inventory of all contract templates.
Make an inventory of your contract templates
A must when using contract templates, which we at AMST Legal highly advocate for, is to
- Regularly make a list of all contract templates that your company is using day to day.
- Make sure you know how many specific/different contract templates the company has for its products & services, countries, languages and departments.
Best is not to only ask the legal department, but to especially ask the business (e.g. Sales, Partnerships, Procurement, HR) which template contracts they are using day-to-day. Just to make sure, also ask them to send you the exact template they are using and check if they are using the right templates.
After making the list, you might be amazed how many different templates are currently in use by the company and where they are all stored. Having this list will give you a better idea which next steps you should take to improve your contract templates.
Conclusion
Organizing your contract templates, reviewing how many you have, and sorting them can be a life saver in stressful times. Oftentimes you might not even need all of the templates that you have currently. So make sure to regularly check up on the status of your contract templates.
How many contract templates do you have in your company?
If you want to become even more structure, and streamline your contracting process – contact us at AMST Legal for tailored advice. Let’s take your contracting to the next level!
Tip 1: 80% Template – 20% No-template
Introduction
In our previous article where we launched an introduction to the series ‘How to Improve Contract Templates – 6 Tips’, which is available here: https://amstlegal.com/how-to-improve-your-business-contracts-contract-templates-part-1-the-basics/. In that part, we highlighted some common issues companies face when it comes to effective contract template usage, especially in the tech industry. These issues include:
- limited resources to dedicate time to create great templates – understandably, business always goes first;
- the contract templates are outdated, hard to find or difficult to use;
- the legal department / lawyer still needs to review and negotiate too many contracts because contract templates are incorrect, too difficult or can be amended too easily; and
- there are multiple versions of a contract template in use that are not aligned with Legal or the management.
This causes delays in the creation of contracts, increases risk for the company and raises the workload of your commercial and legal team to try to solve issues with your clients due to the use of incorrect templates.
To address these challenges, we introduce Tip 1 in our ongoing series on ‘How to Improve Contract Templates – 6 Tips’: The ‘80% template – 20% no-template’ Rule (80-20 % Rule).
Tip 1: 80 % template – 20 % no-template
Why use the 80 % template – 20 % no-template rule?
One tip that we at AMST Legal always recommend for improving the overall structure of contract processes is the ’80-20 %’ rule. What does this mean you may ask. To put it simply, the rule concerns how you can strategize your contract processes. Doing this ensures faster contract processes while making work peaks less significant.
How does the 80 % template – 20 % no-template rule work?
As mentioned, our advice is to opt for working towards a contract process structure in line with this rule whenever possible. This rule is easy to apply, so we encourage you to start using this to make your contract processes smoother.
The idea of the 80-20 % Rule is that:
- you have templates for 80 % of your contracts, and
- that there is no involvement of templates for the other 20 %.
In practice, 80 % of your contracts stems from templates, while you have 20 % made from scratch.
Why is this beneficial?
Ensuring that 80 % of your contracts have templates might sound like a lot of work. Indeed, it does require time, structure and work to fulfil this. However, when you all contract templates in place, processes for those specific contracts will move quicker. At the same time you can save money, and time in the long run. I.e. from legal costs, costs due to minor errors in certain contracts etc.
The time you save from working with the more standardized contracts, that might only need minor changes, will release precious time and resources for your larger and more complex setups/clients. In other words the contracts which require you to draft and negotiate custom contracts.
If you structure your contract processes in line with the 80-20 % Rule and overall in a well organized manner, the contract process can bring all these benefits.
Conclusion
Finally, the advice on what you should do stands – incorporate the 80-20 % rule now to enchance your company. It will improve your everyday work life since you have better control, as well as the company’s financial status and ability to get solid contracts in place. We hope that this has been an eye-opener for use of contract templates. If this subject is something you want to delve into more, go ahead and read our next article in the series ‘How to Improve your Contract Templates’, here: https://amstlegal.com/tip-2-legal-in-the-lead/.
If you need specialized advice on improving contract processes, or how to implement the 80-20 % Rule, reach out to us at AMST Legal. We look forward to helping you.
