The « Effective Date » clause seems simple enough, but you have to be careful not to just insert it into your contract. Read the confidentiality agreement in its entirety and consider what logically cannot apply to the retroactive validity date. There are two types of NOA: a mutual NOA that is used when both parties exchange confidential information, and a unilateral NOA that is used when a single party releases. Consider the parties who will share confidential information in these discussions. If it is just a party, ask if it should use a unilateral NOA. If both parties may need to exchange information, consider whether to use a reciprocal NOA in advance to avoid having to negotiate and execute a replacement agreement at a later date. Consider your situation and sit in the other shoes of the parties so that you are not knocked out or rewarded with the room. Remember that you have already disclosed the information and that the recipient party has no contractual obligation to sign a confidentiality agreement at that time. So what are the best practices if a deal with a retroactive date is really your best option? One of the simplest ways to reissue the agreement is because you can`t put it back together at all. I review the model of the Koncision confidentiality agreement, so that if you indicate, by completing the questionnaire, that certain confidential information was disclosed before the date of the agreement, the exit document contains a presentation indicating that the recipient did not disclose any of this confidential information or disclose it in a manner that would have revealed a violation of the NOA if that disclosure had taken place. (I`m still working on the wording. If a third party asks why an NDA is needed, ask if it is a red flag per se.
You don`t see confidentiality as a major concern or a priority, you may not understand the importance of strict privacy practices, or try to disclose confidential information without a NOA. This may not always be your best option, but if you are almost certain that your previous revelations were in good hands and that there is no other reason to reject the full agreement, this clause can cover all your bases. If you forgot to send an NDA, ask them immediately and professionally to sign a retroactive NOA. Be sure to adapt the NDA`s phrasing and language accordingly to account for the retroactive consumption of sensitive information. Not only does it protect you as you progress, but it also requires the recipient to essentially ensure that no confidential information discussed previously has been disclosed or disclosed in such a way that it has violated the terms of the agreement if the agreement had already been in effect. While adding a retroactive date to a legal agreement is not uncommon, you need to make sure that after weeks of cooperative negotiations, discussions or partnerships, you cannot have a retroactive NOA in hand. The situation should be approached with professionalism and it will have to be for the other party. Understand « labelling requirements »: NSOs generally require the identification of confidential information so that the recipient knows what needs to be treated confidentially.