A confidentiality agreement, also known as a non-disclosure agreement (NDA) is a legal contract between two parties. It restricts the sharing of confidential information outside of the parties involved. An NDA should be drafted and signed before commencing any discussion with third parties. This is particularly useful when discussing your medical device or idea with potential partners, licensees or investors. Protecting information that is not publicly available is important for commercialisation. Here are some essential elements of an NDA:
- Choose a Two-Way agreement to prevent disclosure issues
- Clarify the ‘field’ as clearly and narrowly as possible. The field will be your product of interest. Eg “BioCyst possesses information relating to CB3748, a novel antigen”
- Specify information that you do not want to receive, eg. the structure of a molecule, specific design of a medical device, etc.
- Clarify the permissible uses of any Confidential information and the purpose of using this information
- The NDA should specify that the confidential information will be disclosed in writing, and that all confidential information be marked as ‘Confidential’. If confidential information is discussed orally, this should be summarized in writing within a specified time period.
- All confidential information should be destroyed or returned after termination of contract.
- Determine who is covered in the NDA. Will the information need to be discussed to external consultants or subsidiaries of the company? Clarify whether this information can be disclosed.
- Specify the right to retain an archival copy to know what has been discussed.
- Specify the exact date and time period where information can be disclosed and must be maintained as confidential.
- There should be an exception clause, stating the definition of ‘not confidential’ e.g. if the information is already known to the receiving party
Inner Maven can help you draft various legal agreements. We have engaged in numerous discussions with potential licensees, investors and partners that have required the disclosure of confidential information. This is pivotal to protecting your IP and idea.