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Erin Austin: Hello, welcome
to our LinkedIn Live.

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happy for you to join me.

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I do LinkedIn lives the last Wednesday
of every month where I discuss topics of

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interest to the expertise based business
and helping you make that hourly to exit.

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this is also, being recorded as
a podcast episode of my Hourly

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to Exit podcast that you can find
on all of your podcast providers.

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and so if you are listening to this on
the podcast, I do wanna let you know that

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there are slides that you can find on my
YouTube channel if you are so inclined.

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So, again, I do these the
last Wednesday of every.

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So if there are any issues that you
would like me to cover, please feel free

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to just shoot me a note on LinkedIn, or
I'll also have my contact information

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at the end of the presentation.

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these are a short form, 15 to 20 minutes.

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No topic is too small.

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I wanna know what you're struggling
with, what your questions are,

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so I best serve you and have the
most responsive information for.

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. So, and of course also feel free to,
ask questions at any time during the

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presentation, or also at the end, if
you don't do it during the conversation.

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so we are here to talk about the
ubiquitous n d a, and specifically

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I'm gonna talk about a few
hotspots that you need to be aware.

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Now, let me say, of course,
you know, I'm a lawyer and I do

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encourage you to have all of your
agreements reviewed by a lawyer.

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And NDAs are agreements, so
they're binding agreements.

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and I do want you to treat
them with seriousness.

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and as a practical matter, you
may not always be able to do that.

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So we're gonna talk about
some things to think.

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My disclaimer that I gotta throw in
here is, of course I am not your lawyer.

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this is general legal information and
in order to have, the law apply to

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your specific facts, then you do need
to consult with a lawyer for that.

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So on with the show, N D A Hotspots.

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So,  NDAs are everywhere.

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So if if you have been working with
corporate, in and around corporate, at

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least for the last 10 years, maybe longer,
if you're like me, then you know that

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there has been a mass proliferation.

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of n D A usage.

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And so why are they everywhere?

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Well, that is because over 70% of
the value in corporate businesses

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is in intellectual property, and
other intellectual assets, like

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customer lists and things like that.

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So in order to protect those assets,
they require NDAs before they're going

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to share that information  with you.

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And so just to back up and just to
talk generally about NDAs, also known

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as non-disclosure agreements, also
known as confidentiality agreements,

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what we're talking about today are
those standalone agreements that you're

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signing before you enter a transaction

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with

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someone.

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So you've made contact with another party.

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Maybe you want to, pitch them something.

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Maybe they've asked you for
a proposal; maybe you want

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to collaborate on something.

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And in order to figure out whether
or not it's a good fit, you are going

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to have some conversations where some
confidential information may be shared.

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And so you do want to have that NDA in
place before you share that information.

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and so I'm not anti NDAs.

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I do think they're over-prescribed.

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I will say that my general feeling about
NDAs is that if you were just in the

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talking stage to borrow a dating, Term,
you should really limit the amount of

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confidential information you share, cuz
at the end of the day, your confidential

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information is best protected by keeping
it confidential and not sharing it.

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I like to say discretion is your best
protection when it comes to, protecting

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your Confidential information, and
that your NDAs are kind of the, cousin.

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So, we know we have NDAs that we have
to deal with, so let's talk about them.

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So, these are some five hotspots.

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This is not a provision by provision
review, but some of the main

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issues that you're going to come
across that I want you to be aware.

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So the five are the confidential
information definition.

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Then of course there are the
exclusions from the confidential

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information definition.

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circumstances when disclosure
is legally required,

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the

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Erin Austin: non-disclosure and
non-use restrictions that apply

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and indemnification provisions.

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funny when I'm working on these, you know,
PowerPoints, everything looks so big and

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on my stream yard screen it looks so tiny.

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So I hope you can read everything.

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If you can't read something, please
put a comment in the chat so I can

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make sure that, you get it, but
also know that, well, the recording

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will be available if you miss.

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So for those of you who are listening
and not watching, I am going to read.

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What I have is a typical
confidential information definition.

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Now, every definition is different.

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If you have a hundred NDAs, the definition
of confidential information will be

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different and every single one of them.

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But, there will be some things
you can expect to see in there.

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So this example that we have, The
recipients, and I want you to note, so

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the person receiving the confidential
information is referred to as the

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recipient or the receiving party.

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The person who is disclosing their
confidential information, I'll

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be referring to as the disclosing
party throughout the presentation.

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So the recipient's obligations
under this agreement shall extend

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only to confidential information
that is one marked as confidential

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at the time of disclosure.

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So you'll have, a handout that
has confidential marked on it.

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two is identified as confidential
at the time of disclosure.

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So it's mentioned or.

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but is designated as confidential
in a memorandum that is sent to

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the recipient, after the disclosure
that summarizes that information.

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And then I have in red, font
because it's one of my hotspots.

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any information that is disclosed, whether
in writing orally or via electronic

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means by the disclosing party and
which the disclosing party considers

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to be proprietary or confidential.

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So why do I not like that last one?

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Now I'm going to say a
little background on this.

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There used to be before NDAs were
used, Anytime you got on the phone

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with somebody, when they were used
for very specific purposes, the

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confidential information definition
used to be very clearly defined.

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It would be like, I'm going to share my
financial information with you, or I'm

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going to share my strategic plan with you.

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And so you just had
this very clear definit.

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But since we now use them all the time in
all sorts of circumstances, and it's all

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templated, so they're not doing a special
one for every time they're sending it out.

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They've added this catchall, like
just anything that happens to come

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up that might be confidential is also
considered confidential information.

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And so I hate it, but
it's the way it is now.

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And so you're always
gonna find these catch.

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however, the problem with them is, one
of our hotspots, which is, if you have

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disclosed confidential information orally,
you haven't gone back and summarized it.

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you know, it's not in some recording
like, recorded zoom call that says

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it's confidential information and
then there is a dispute later.

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Like, how do you prove that you shared it?

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you, unless it's something very specific
that could only come from you, how

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would you prove that you shared it?

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what's the paper trail?

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And so people, you know,
insist on these catchalls.

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So you're gonna see the catchalls.

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You're gonna have them in your NDAs,
but if you are the disclosing party

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and you're sharing your confidential
information, then I want you to

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make sure there's a paper trail.

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So if there's some dispute about whether
or not someone used your confidential

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information, you have the paper trail.

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So that's our hotspot number one.

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So, As a result of these catch-alls
and, uh, for the definition

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of confidential information.

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Now, of course we need to have exclusions.

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We used to not have exclusions, but
now we have to have the exclusions from

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the confidential information definition
because the definition is so broad.

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And so, there are a few things that
you always wanna make sure that

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are excluded from the definition
of confidential information.

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Here we have four that you'll typically
see, The information that is generally

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known to the public at the time of
disclosure or later becomes generally

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known, without receiving party
disclosing, it would be excluded.

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So let's say you're having a Zoom call
and people are sharing things and you

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have one of Catch-alls, just the fact that
it was disclosed during that Zoom call.

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you have this catch-all that everything
I tell you is confidential information.

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Well, it's not, if it really is,
known to the public, you cannot

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be in a worse position than the
member of the public with respect

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to that confidential information.

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it becomes,  known to the
receiving party from a third party.

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Somebody else shares it with you.

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so that would also be excluded.

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If you independently develop it.

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they say that there's only so
many original ideas in the world.

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so if you are separately, you know, your
marketing departments over there, the

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marketing department had nothing to do
with, your financial team and they somehow

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come up with some similar ideas, then that
wouldn't count as confidential inform.

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And then the last one that is in red
here is information that is required

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to be disclosed by the receiving party
to comply with applicable laws or

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governmental regulations or court order.

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Why is that a hotspot?

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Well, the fact that you had to
disclose that confidential information

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for, legal purposes does not make.

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No longer confidential information.

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So let's say it's your confidential
information for some reason,  the

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receiving party has to disclose it
for s e c purposes or something.

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And so that doesn't mean that they are
now free to blast it across the internet.

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It's still your confidential information.

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It doesn't mean that they're
free to use it and create

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their own products out of it.

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It's still your confidential information.

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,  it is not an exclusion from the
confidential information definition.

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You do not want that, circumstance
of needing to disclose it for, legal

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purposes, to exclude it from the
confidential information definition.

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Where it is appropriately
addressed is in the next hotspot.

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So there should be a separate provision
that says, in the event that you are

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required, because of legal requirements to
disclose my confidential information, then

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you won't be in breach of the agreement
if you meet these certain circumstances.

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And so you might see something
like this provision here.

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If you are required by any legal or
regulatory process to disclose any

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confidential information, you shall
provide prior written notice of such

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disclosure to the disclosing party
and take all reasonable and lawful

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actions to avoid and/or minimize
the extent of such disclosure.

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So we have two hotspots in this provision.

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First of all, are you legally permitted
to provide notice to disclosing party?

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What if the disclosing party is the
object of some sort of investigation?

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And so, the f B I comes to you or
the s e c comes to you and, asks

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you for some information that you
received from the disclosing party.

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as part of that investigation, and they
tell you, you cannot give notice that

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we are asking for this information.

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So if you have that language in
there that requires you to give,

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notice to disclosing party without
any exceptions, then you would be in

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breach of the agreement if you did
disclose it without giving them notice.

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The other part of that is that it
put the burden on the receiving

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party to get a protective order.

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The burden should be on
the disclosing party.

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That's their information.

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They have the value in it.

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They have the vested interest in keeping
it confidential, and so it should be

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their burden and not your burden as a
receiving party to seek protective orders,

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which of course, cost money and resource.

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However, you should reasonably cooperate,
at their expense, but the burden to pursue

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that should be on the disclosing party.

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The fourth hotspot is regarding the
non-disclosure and non-use restrictions.

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Now you'll see that this is all in white.

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There are no hotspots in this language.

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I'm going to read it.

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for the benefit of the podcast
listeners, the receiving party agrees

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that it will make no use of any of the
confidential information except for the

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permitted purposes, you know, whatever.

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uh, the conversation is around, and
will only disclose the confidential

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information to those of its employees
or, its advisors, like lawyers,

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that have a legitimate need to know.

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It might also see on a need to know
basis, for the permitted purpose and

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who are informed of the confidential
information of the information and that

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also understand that the no use restric.

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So this is all very reasonable, an
n d a a non-disclosure agreement.

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Although it only has the non-disclosure
part in the title, it is also a

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non-use agreement, I guess it'd
be too unwielding to call it the

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non-disclosure and the non-use agreement.

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But both elements are extremely important.

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Part of an N D A.

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Of course, you're not gonna
disclose it, meaning you're not

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gonna tell other people about it.

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You're not gonna broadcast it.

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The non-disclosure piece, the non-use
piece, is you're also not going to

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use it for your own internal purposes.

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You will only use it for whatever
the reason is that you're having this

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conversation for the collaboration, for
the services that you're going to provide.

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So if you didn't have that non-use
restriction, then you could, use

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it internally without violating
a non-disclosure, which is why

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there's always two parts to it.

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So that's why I'm happy
with this provision.

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There's no red parts in it.

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However,

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The hotspot issue is, if you
offer similar goods and services.

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, you don't want this to somehow turn
into a non-compete, you similar to the

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exclusions that we talked about earlier.

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So you could have something going on.

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Like today, I could be working
on something that I am going

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to release, on March 1st.

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And per our, conversations about.

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something else we're gonna
might work on together.

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You disclosed to me something that's very
similar to what I'm working on right now.

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And so you wanna make sure that
you also have a provision in there

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that acknowledges that, hey, we
may be working on similar things.

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We may have similar ideas.

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The fact that we're, sharing
this information does not mean

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I can't offer similar services
that are similar to yours.

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So, That is something you wanna make
sure is covered if you are working

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with someone in similar services.

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Now, this probably is not applicable
if you are entering an NDA with

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your, big corporate client.

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Probably you guys are not in the
same business it's not applicable,

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but you do need to be careful if.

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it is.

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And then our last hotspot,
indemnification, and, the

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entire provision is in red.

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And so this is, you know, your standard
indemnification where a recipient

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indemnifies the disclosing party in
the event of any third party action

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that arises from a breach of the a.

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And so generally, in services
agreements, indemnification

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provisions are not that controversial.

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So why is it controversial in an N D A?

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, why is my recommendation?

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Just say no.

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Well, it's because if you are just
in the talking stage and there is no

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agreement to move forward in a real
transaction where you will be exchanging

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money, then there is no consideration.

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For taking on that type of liability.

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You should not be accepting the
liability of indemnification just

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to talk to someone about whether or
not you're going to work together.

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So, get that indemnification
provision out.

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if you, possibly can, I
strongly encourage it.

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So that is our fifth and final, hotspot.

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so I'm happy to take any questions,
from you if you have any.

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You can just pop 'em in the chat, and
of course you can also always follow

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up with me directly afterwards as well.

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Well, I hope that this was helpful to you.

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you can find me on LinkedIn.

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If we're not connected, please
connect with me, or you can, find me

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00:17:04,464 --> 00:17:06,834
on my website, think beyond ip.com.

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00:17:07,101 --> 00:17:09,801
And of course, if you're
listening to this on LinkedIn.

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00:17:09,961 --> 00:17:15,221
Then to also check out my Hourly to Exit
podcast, where we talk about, all these

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00:17:15,221 --> 00:17:18,402
issues to help you create a scalable.

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00:17:18,567 --> 00:17:22,020
Hopefully someday saleable
expertise based business.

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00:17:22,199 --> 00:17:26,113
And we also talk to experts as
well about different elements

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00:17:26,118 --> 00:17:28,273
of that hourly to exit journey.

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00:17:28,550 --> 00:17:33,289
And you can also sign up for my weekly
newsletter, and I have a lot of free

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00:17:33,289 --> 00:17:35,779
resources on my website as well.

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So thanks again and hope
to see you next time.