Whether you refer to them as a non-disclosure agreement (NDA), confidentiality agreement (CA), confidential disclosure agreement (CDA), or something else, you’re ultimately referring to the same thing: An NDA is a legal contract which sets out how you share information or ideas in confidence.
Usually, at some point during a new business or product launch, you’ll have to discuss information regarding your idea with a third-party, e.g., a bank, investor, accountant, or other. Rather than assuming that these conversations occur in confidence automatically, you can write a non-disclosure agreement and ask the person in question to sign it before you begin your discussions. They will thus, be bound by law not to reveal details of your business or product to anyone outside of your company.
Although the type of information that you can protect by using an NDA is more or less unlimited, it’s common that they’ll cover sensitive information relating to a person, or legal matter or details on a new product or concept to help the inventor protect the copyright or patent — which can be incredibly important for designers working on big projects.
In fact, if you’ve ever created a design concept or invented a new product, you may have used an NDA to protect your work as you begin to discuss it with other parties. For example, as a designer working on a project with a company you’re under contract with, you may also have been asked to sign an NDA by that firm to ensure you don’t share any details of it outside their office.
How to write a non-disclosure agreement
Before you start putting together your agreement it’s important to take into consideration the points below:
What information is covered by your non-disclosure?
While you don’t need to detail every piece of your confidential information in the NDA (it is confidential, after all!) you’ll want to make sure that you adequately word the agreement so it is clear. You’ll need to cover who the agreement pertains to, exactly what information each party is not allowed to disclose, and — most importantly — what constitutes “disclosing.” With the prevalence of social media and ease of casual conversations, you don’t want something to slip through the cracks that could ultimately set back the project's success.
Do you need a lawyer’s help to create a non-disclosure agreement?
The short answer for this is: No. Non-disclosure agreements can be tricky documents, but you don’t legally need a lawyer to draft the NDA (or even look over it at all).
However, when possible, it’s a wise idea to enlist someone with a legal background to help you in creating an NDA and getting all parties to sign it — particularly if you’re dealing with extremely sensitive information. A lawyer or legal team may catch loopholes you forgot to close or use terminology within the agreement that could protect you down the road.
How restrictive do you want the non-disclosure agreement to be?
Don’t forget that, depending on what type of information you’re protecting, the other party might need to discuss it at some point with your colleagues or other future employees. They might also need to create copies of information that you’ve protected for work purposes. Try to be as realistic as possible when setting the boundaries for your agreement.
How long should the non-disclosure agreement stand for?
Most NDAs will be set up to protect information for 3-5 years. With that being said, there’s no set period that you have to use. Just keep in mind that once information is made public, it can’t be protected again, so it might be wise to set your NDA period for slightly longer than you currently expect.
What type of non-disclosure agreement should you require?
If you’re the only party disclosing information, then you can set up a ‘one-way’ agreement. However, if both parties are set to disclose confidential information to each other, then it should be set up as a ‘mutual’ NDA.
Once you’ve considered the above, you can start piecing together the NDA. Typically, you’ll find some recurring elements of an NDA, and then there may be bespoke aspects to some agreements depending on what information is being protected, etc. Commonly used items found within most NDAs include:
- An identification of the parties attending the meeting or being involved in the agreement
- An outline and definition of what is deemed to be confidential in this agreement
- The scope of the confidentiality obligation by the receiving party
- Any exclusions from confidential treatment, e.g., anything that is explicitly not protected under the agreement
If you’re wondering what this looks like on paper, then you can easily find some templates for NDAs online. Just keep in mind that your country and state in which you choose to hold the agreement may face different legal implications elsewhere.
How to ask your client to sign a non-disclosure agreement
Asking your client to sign an NDA is often the hardest part of the process. Based on the information being disclosed, their background or their interest in the project you’re working on they may have objections to some terms of the contract. Be sure that both parties have agreed to and signed the NDA before you release any information or meet with a client.
The last thing you need is confusion over legal obligations once a project has started, so make sure everything is clear before you begin. The easiest way to do this is to ask your client well in advance of when the project is due to start to ensure they have time to review your proposal with their legal team if they wish (like we mentioned above). It might even be helpful to outline from the start that you’ll need the client to agree to an NDA which could prevent any unnecessary frustration from their side of the table when you announce it.
Writing a non-disclosure agreement isn’t a hugely time-consuming task, but it’s an important one to get right.
Overall, we recommend that you:
- Consider what information you want to protect from your client(s) and why?
- Think about how long you want the agreement to stand for and how restrictive it needs to be to protect the required information efficiently
- Inform your client before you agree to any project or work that you’ll require them to sign an NDA