If you work on your own or for a company, you have definitely been asked to sign an NDA and/or an NCA. So what is an NDA and NCA? An NDA is an abbreviation for a Non-Disclosure Agreement and an NCA is a Non-Compete Agreement. NCA’s are not commonplace but NDAs are becoming the current norm. Nevertheless, not all countries or businesses around the world use NDAs. They are fueled by most US and European firms as a means of protecting their commercial interests in a venture. This is the crust of an NDA – COMMERCE, ECONOMICS, MONEY.
NON DISCLOSURE AGREEMENTS essentially are legal instruments or documents that stipulate that you, the individual or company, will not share or disclose a broad range of generic and specific information, that may or may not affect the commercial interests of the partner firm you are dealing with. NDAs are in their core dna geared towards the protection of the wealthier and more powerful party in the arrangement. Digging a bit deeper, NDAs are often between a business and an individual. A business to business NDAs are equally common but shrouded in too many legally confusing texts with a million loopholes which require the services of a business lawyer. When dealing with a business to business NDAs, it is highly recommended that the services of a commercial lawyer be brokered. Ideally, the name of that lawyer and his/her firm be included in the NDA.
For the purposes of this post, I will stick with business to individual NDAs. So how do you deal with this type of NDA?
1. Whatever you do, NEVER EVER sign a LIFETIME NDA: Non disclosures that tie down an individual to a lifetime commitment is a no go area. Only a small minority of justices will spare you the consequences if you sign a lifetime NDA with any business. There is no venture, job, project or business on this planet that is worth more than sacrificing your right to earn a living. Save yourself and walk away.
2. Non-disclosures with no commercially defined clause: Remember that the first rule about NDAs are that they relate to commerce. There are some exceptions such as with a government or military grade projects. As much as it relates to you, do not sign a non-commercially defined NDAs because these types carry clauses that will hinder your ability to practice your trade. NDAs that carry clauses which describe “acquired knowledge” are examples. They often hide behind such words to prevent you from using the experience you gained before and after working with such an organisation, to apply your skills to another project, country or venture.
3. Non-Specific disclosures: Stay away from generic or broad NDAs. They can be hell on earth to defend yourself against it. Tell the business you are dealing with to specify exactly what you should not disclose and MAKE SURE that the clause “what is public and available on the internet” is inserted somewhere in the nda. You do not want to be blamed for something that is already public knowledge; there is nothing new under the sun.
4. Ask. Ask. Ask: Always ask if you can work without an NDA. If you can, then go for it.
5. Keep it simple stupid: Programmers use the KISS rule and it applies to NDAs as well. Keep your agreement free from complex nonsense. One A4 or a maximum of two A4 sheets are the norm. Anything beyond that requires the scrutiny of a practicing lawyer.
6. Be weary of balance: Some business nowadays want their consultants to sign 3-year NDAs before looking at project outlines to enable them make decisions. You should NEVER sign such NDAs because it makes you vulnerable. In such a situation, contact the business and propose a 6-month NDA otherwise simply ignore it and move on to another project. On the otherhand, if you get to work on the project, then signing a 2 to 3 year NDA should be doable.
NDA’s a difficult hurdle to meander through but they have come about because people steal ideas and others disclose viable knowledge, often gained through sweat and toil, to competitors in order to gain something for themselves. Nevertheless, NDAs have ran amok and ought to serve the simple purpose to which they have been tasked – keeping SPECIFIC and COMMERCIAL content from others.
My two cents! Stay Professional!
About the author: Sal Souza is an International Designer (Graphic, Visual, Multimedia, Broadcast Media, Industrial, User Interaction, User Experience) and IT Consultant with expertise in New Media, Web 3.0, IPTV, DTV, Media Production, Product Prototyping, Desktop Software, Interactivity, Mobile Applications, Traditional Knowledge, Geographical Indications and Cultural Goods. He lives and works in Nijmegen, The Netherlands.