NDAs can be barriers to business, with the same changes negotiated time and time again, regardless of whether you’re on the buy/sell side. OneNDA removes that barrier by helping us to meet in the middle.
Clients often ask us to either:
draft a ‘template’ non-disclosure agreement (aka confidentiality agreement); or
review one they’ve received from the other side.
We could shut up and take their money.
But we don’t.
Instead, we recommend they use oneNDA.
Want to know more? Keep reading…
what is an NDA?
An NDA serves as an entry point for exploring a commercial relationship between parties while (contractually) protecting the exchange of confidential information from misuse.
💡 Think of it as the rules of engagement between the parties: both parties agree that they won’t disclose or use information exchanged in a way that’s not authorised.
do you really need an NDA?
You don’t always need an NDA.
But often you won’t know what you’ll be disclosing to the other side until you’ve had these preliminary discussions.
So, while there are very limited ‘trade secret’ laws that may protect you without an NDA in place, why not err on the side of caution and have something in writing (said every lawyer, ever).
💡 A good rule of thumb is to ask yourself: would I be okay for the other side to use this information or disclose it to others?
does an NDA actually protect you?
Yes and no.
There’s often a lot of noise around whether NDAs are worth the paper they’re written on.
Often, this is because firstly, it can be hard to identify exactly what is confidential information (and what is not) and second, it’s usually expensive (and messy) to resolve NDA-related disputes.
Fundamentally, if someone wants to use what you’ve shared under an NDA, a piece of paper isn’t going to stop them. So, it’s important you do your due diligence on who you’re getting into business with (do they have a reputation of having loose lips?).
If someone has revealed your secret herbs and spices, what an NDA does is help you recover any losses.
Without an NDA though, you’d have to rely on trade secret laws. And that’s even more costly (and messy). So, what have you go to lose?
💡 NDAs alone aren’t the answer. Check out our tips below, which will help you avoid some of the issues typically associated with NDAs.
when should you put an NDA on the table?
NDAs are usually signed as part of early-stage ‘vibe check’ discussions – before a deal is even on the table.
Lawyers will tell you it’s never too early to get an NDA in place. But there’s a fine line – you don’t want to come on too strong (it’s only the first date 🌹).
So, just be cautious with how much you disclose before one is in place (and even when one is in place, you still have to keep your wits about you).
💡 Trust your gut.
whose NDA should you use? Yours or theirs?
Neither. Use oneNDA.
💡Using an open-source template levels the playing field, so the parties can get off on the right foot from the beginning.
what is oneNDA?
oneNDA is a crowd-sourced, legal-community led, open-source template that standardises the NDA. Hallelujah 🙌
It’s been through an extensive drafting and consultation process with some of the brightest legal minds in the industry, with the aim of “reducing legal work, increasing transparency, and speeding up business deals”. Yes, please 🙏
💡 There are other standardised NDAs available. But the whole purpose of oneNDA is that – you guessed it – there’s only one universally accepted template.
So, this is our pick. We even use it ourselves.
who is using it?
The likes of Barclays, BHP, Endeavour Group, MYOB and American Express have all adopted it (among other giants).
So, if it’s good enough for them, it’s good enough for us.
💡 You can see who else is on the growing list found here.
start with why: why use oneNDA?
Here’s why: Less than 1% of NDAs ever get litigated.
Typically, this means the ROI is not proportionate to the effort we expend on them.
💡 Check out our tips below, which will help you avoid some of the issues typically associated with NDAs.
what version of oneNDA should you use?
There are two versions of oneNDA: standard vs. m&a.
What version you use depends on the context. You’ll need to consider the nature of the relationship and proposed transaction.
The standard one is perfect if you’re looking explore a relationship with potential suppliers, vendors, or strategic partners/ collaborators. Download the latest version here.
The m&a version is better suited to discussions with investors or about a potential merger/acquisition. Because of the complexities of these type of transactions, we highly recommend you get your lawyers involved, even if you want to adopt oneNDA’s m&a version. For this reason, we haven’t offered any specific commentary on how to use this version. Download the latest version here.
💡 oneNDA release updated versions from time to time, so ensure you’re always downloading the current one via their website. Save to faves 💾
how do you get the other side to accept it?
Sometimes, it’s first in best dressed.
So, put forward oneNDA as early as feels appropriate.
If the other side says they’d prefer to use their own, leverage the script written by the creators of oneNDA (shortened a little by us).
“We use oneNDA. It was created collaboratively by a group of leading law firms and in-house teams with input from the wider legal community. The terms have been discussed extensively in order to make it balanced, fair and easy to understand. You can find more information here. It’s a mutual NDA for the benefit of both parties sharing confidential information with each other and can be used at no cost. Here’s a copy [we’ve completed, ready for both parties to sign].”
How do you argue against that?
💡 Adopting oneNDA: free. Consensus between lawyers: priceless 😅
how do you complete the ‘Variables’ section in oneNDA?
We’re glad you asked.
NDAs can be pretty complex beasts. So, while we’re fans of ‘templated’ NDAs, often the magic is in knowing how to use them 🪄
And, here’s our step-by-step download we’ve prepared to help you.
download: how to use oneNDA
so, you’ve got oneNDA in place. Now what?
Even after you’ve got an NDA in place, you need to be careful what you share.
Of course, you want to be transparent to facilitate open communications and genuine connections. But be careful if you’re putting all your cards on the table.
Here are a few tips:
Sometimes there are a few rounds of ‘disclosure’ as things progress. Take a ‘minimal viable disclosure’ approach until there’s a formal deal on the table, especially early on in the discussions.
Confidential information doesn’t have a definition at law – it’s what the parties define. So, label what you disclose as confidential information (e.g. “Private & Confidential”, “Commercial-in-confidence”, etc.) and confirm the same in any meetings or on any telephone/Zoom discussions.
Be clear when you are disclosing your confidential information on a “need to know basis” and get specific with who you’re comfortable for them to provide this to (i.e. names and/or roles).
Restrict digital/physical access to the confidential information (e.g. shared folder with limited users, password only, not downloadable, limited timeframe, sight only, etc.).
when is oneNDA not appropriate?
oneNDA is for use in your more common scenarios where two parties want to enter into commercial discussions.
If you’re looking are more complex scenarios say where you’re contemplating a very specific, complex, or strategically significant deal, you should speak with your lawyer first. Same goes if you’re looking to use oneNDA’s m&a version.
Similarly, if you’re sharing information that’s subject to data and privacy laws (e.g. personal and sensitive information), an NDA isn’t appropriate. Protecting those kinds of exchanges is done with a data processing addendum (DPA).
💡 Lucky the creators of oneNDA have also created oneDPA.
all too hard?
There’s a lot to digest and DIYing oneNDA isn’t for everyone.
If you need more specific guidance on whether oneNDA is appropriate for commercial discussions you’d like to kick off, and if so, how to use it, we can assist you as follows:
Advisory Session to discuss the relevant commercial arrangement;
Completing the ‘Variables’ section in oneNDA so it’s fit-for-purpose; and
Arranging for execution by the relevant parties (via AdobeSign).
Our fees for the above are $750 + GST.