All for oneNDA and oneNDA for all?
A Non-Disclosure Agreement (NDA) or Confidentiality Agreement is a contract used when confidential information needs to be shared between two or more parties. The NDA helps to ensure that the person or organisation who receives confidential information protects it, does not disclose it to a third party, and uses it only for the purpose for which it was shared.
While the premise of an NDA is simple, the problem is that NDAs seem to come in more versions than film, television and theatrical adaptations of The Three Musketeers.
Earlier this year, a group of experienced lawyers set out to create a standardised NDA. The project is called oneNDA, and the fruit of their labour is available on an open source1 basis at oneNDA.org.
The goal was simple — circumvent hours of legal review and negotiations over third party NDAs and mark ups to a preferred template, by standardising confidentiality terms help businesses advance to the stage of evaluating the commercial relationship — and have 1,000 companies adopt oneNDA by the end of 2021.
The substantive terms of oneNDA are fixed, and parties need only add details of the contracting entities, complete the chosen variables (the purpose, confidentiality period, governing law and jurisdiction), add the date, and issue the document for electronic signing.
The creators encourage early adopters to provide detailed feedback on how oneNDA is working in practice and upvote each other’s recommendations, with a view to creating new and improved iterations.
With a fundamental duty to act in the best interests of our clients, the legal industry is eager to explore more efficient ways of working through innovation, collaboration and standardisation. In general, we can see how oneNDA could be a low-friction, easy-to-implement solution for many businesses.
However, the current terms and conditions in oneNDA are not perfect and, when considering whether to use oneNDA or a tailored Confidentiality Agreement, careful thought should be given to the specific types of confidential information to be disclosed, the purpose or project to which the confidential information will be applied, and the commercial and financial risks associated with such disclosure.
If your Australian business is considering whether to use oneNDA to regulate its next pre-contractual discussions, there are three key limitations (among a plethora of others) to keep in mind:
The answers to these questions can radically affect the conduct and outcome of a dispute, as well as the costs and timeframes involved. Even if you are simply relying on nominating a Governing Law and Jurisdiction under the oneNDA template, we recommend you seek legal advice to ensure the agreement will be enforceable in Australia.
For more information about NDAs or Confidentiality Agreements, or to discuss whether oneNDA is appropriate to protect your organisation’s confidential information, please contact our Intellectual Property and Technology team.
1Open source is a permission to use software source code or other content from someone else. Sometimes the permission comes with conditions that you agree to comply with, when you re-use the code or content.