“I need to tell someone my great business idea in order to help move it forward… but I don’t want them to steal it!” If you’re struggling with this dilemma, you’re not alone. We frequently work with clients who are facing this very challenge. They want to know what they can do to proceed with confidence that their idea is as protected as possible. The best approach: contracts, and careful management of your disclosure. Firstly, putting a well drafted and customised Non-Disclosure Agreement or NDA (sometimes called a Confidentiality Agreement) in place before you enter into discussions is key. This is an agreement which contractually obliges the person to whom you’re disclosing confidential information to keep it confidential, and to only use it for certain (limited) purposes. As a legal document it provides you with a basis upon which to stop unauthorised use, and to potentially seek damages if you end up losing money as a result of their breach. It is important to understand, though, that having an NDA in place is not a magic solution. Enforcing your rights under a NDA can be time consuming, costly and there’s no guarantee of success. This is especially the case when the actual ‘confidential information’ itself is a very high-level idea or concept. Which leads us to the second part of the answer: use common sense and be smart about what you disclose, and how you disclose it. Even with a signed NDA in place, you should follow these simple rules: Need to know! Try and provide the minimum amount of information necessary to the other person for the relationship to move forward. Mark it. Even if your NDA has a broad definition of Confidential Information, it is best practice to label documents and materials as confidential – or (for verbal disclosure) notify the recipient that the information is confidential. Confirm. If disclosed verbally, think about confirming what was disclosed in writing afterwards, and always make your own notes as to what has been discussed. Managing your disclosure, after putting a customised and comprehensive NDA in place, represents the best combined approach to ensuring your confidential information is as protected as possible.
When it comes to commercial negotiations, they often don’t turn out the way you had hoped and then there is no going back. Instead of struggling on your own, losing a lot of management time and still not being sure you have got the best deal, let us negotiate for you.
Get it in writing – Commercial Contracts
The new standard contractual clauses