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How to eSign a document: eSignature licitness for Interview Non-Disclosure in Australia

I'm met Alexander I've been a business and technology lawyer for the past 17 years and before that I was involved in high technology businesses as an engineer and as a marketing person let's begin with some really critical information Trade Secrets know how in confidential information are the most valuable forms of intellectual property for most businesses the key here is that if any of them are disclosed without proper contractual or legal protection they're lost in other words you can't stop others from using that intellectual property without your permission if you disclose it improperly this form will help you avoid doing that so let's just talk a little bit about non-disclosure agreements because I think that's important to set the background a lot of people take the position that a non-disclosure agreement is hey it's just a form it doesn't really matter does it well actually it really does there are several key issues that have to be uh determined in a confidentiality agreement to make it enforceable now let me let me start off by saying hey do we need to use a confidentiality agreement at all and that may sound kind of strange given what I just said in the beginning but let me ask you have you ever been on a blind date now if you have and you started that blind date by asking the person out of the box hey you know you look pretty good you want to get married do you want to have kids how many kids do you want to have I don't think that blind date would last too long yet companies often rush into a confidentiality agreement when really they shouldn't do it they need to find out hey are is this a good match and there's a really important distinction between what the confidential information does or what the outcome of it is versus how the actual details of the confidential information and so it's very important important that when you think about using a confidentiality agreement and disclosing Trade Secrets knowhow or confidential information that you do that only after everyone has decided that there's a business reason to continue the relationship because the business reason is going to be the driver next when it comes to doing uh uh disclosures there's often a David and Goliath Arrangement here now the one thing I want to tell you is that David and Goliath usually doesn't work out anywhere except in the Bible right the David that would be you the smaller company with the confidentiality grman usually gets crushed by Goliath and what this means is if you can't enforce a confidentiality gond if you can't afford to hire a lawyer and to go into court and take that on then you're really hoping that the other side is going to follow their obligations what this means is you you still have to have the conf confidentiality agreement but you've got to do some due diligence and that due diligence is critical to making sure that the other party isn't going to ignore their obligations and usually the way you look at this is what have they done in the past you know you've heard the expression I'm sure the leopard doesn't change its spots and what'll happen is if a confidenti if the company has violated the terms of its agreements before it's more likely to do so in the future so be sure that you check out who you're talking to and don't blindly assume that the non-disclosure agreement is going to protect you next what's key is the conf definition of confidential information in the form you'll see that we Define confidential information as those things that are either secret or that the company your company uses efforts to uh maintain the secrecy with when we look at confidentiality agreements that come from other places often we'll find that the definition is everything under the sun everything is conf confidential information well you know that just can't be and what we want to do is tighten it around things that are truly confidential and so whenever you're looking at a confidentiality agreement make sure that what's in there is confidential information it's not everything that you receive next is followup sometimes during discussions uh confidential information will be disclosed verbally on a back and forth basis with uh the various parties and it's very important to go back to take notes during the meeting and then follow up immediately with a list of the things that uh you thought were confidential information and are subject to protection by the confidentiality agreement because initially out of the box usually you're not going to have a bunch of people objecting to what you list out as confidential information and oh by the way it really needs to be confidential information stuff that's secret and new and novel right but on the other hand um later on if you have to enforce that and you don't have that uh that email or you don't have uh the letter indicating what you thought confidential information is then there might be a legitimate dispute about hey what was this what was the appropriate uh disclosure of what was protected and what wasn't so it's very important to follow up with what you think the uh confidential agreement is then finally the length of the secrecy obligation um you'll find in a lot of agreements that they say the length of the secrecy obligation is three years or seven years or something like this well let me ask you a question do you know that one of the most famous Trade Secrets of all time is the formula to Coca-Cola do you realize that the formula to Coca-Cola albeit it's been modified has been around for a hundred years or more what if the inventors of Coca-Cola had signed a confidentiality agreement that limited the term of the confidentiality obligation to three or five or even seven years well the problem is that the shelf life of that trade Seeker for Coca-Cola far exceeded 7 years and your shelf life of your intellectual property your confidential information May likewise exceed s years or five years or three years why put an artificial termination date on the obligation of the other party to keep it secret because once they don't have to keep it secret what does that mean that means they can use it and so you want to be sure that the obligation for secrecy continues until the time when that information becomes public domain or readily accessible it may never become public domain like the formula for Coke and may continue on for long a long long period of time during which your company can utilize it uh and hopefully make a ton of money off of it now one thing about confidentiality and non-disclosure agreements often times I see that somebody will come with one one that is a mutual non-disclosure agreement this is a key really key piece of information you have to be sure about what way the confidential information is going to flow if you're the technology company or you're coming to the table to disclose what you've invented a mutual non-disclosure agreement is not what you want why well first off you don't want the other side disclosing information to you consider this scenario you've developed an a technology and the uh other side uh makes a comment during that technology or discussion about uh new improvements that you could make to your technology well if you've got those improvements already in mind now you've got a dispute was that other side giving you intellectual property were they were they giving you confidential information that now you're not uh allowed to use these are things that you want to be sure of so only enter only get a mutual confidentiality agreement if in fact there's going to be disclosure on both sides if on the other hand there's a discussion where you're providing confidential information and the other side is listening to it to evaluate a business Arrangement then it should be a oneway confidentiality agreement that protects your information one final piece of information here is critical and that is when you're dealing with investors a lot of times people will ask me for a confidentiality agreement for investors most most of the time professional investors will not sign a confidentiality agreement and the idea behind that is hey if your secret sauce for your business or your technology is merely disclosed by laying out your business idea then you really don't have a secret sauce you don't have anything that's protectable in the first place now if that's the case you really got to go back to the drawing board and figure out what the secret sauce is for your business and maybe develop a little bit more if that's not the case then again you can describe the what the outcome of the use of your intellectual property your confidential information rather than the method by which it does it the how of uh of the actual knowhow or trade secret that you're using and by doing that you can get an investor interested to see what the the business is and then later on doing a due diligence phase uh where a confidentiality agreement is maybe more appropriate then the investors more like to sign okay well I'll I'll look forward to seeing you in the next video when we go over the actual free NDA form thanks talk to you soon