Certain provisions in non-disclosure agreements (NDAs) do not always receive the attention or scrutiny they deserve, since they initially appear to be standard or straightforward provisions and clauses. However, failing to tailor the parties, governing law, and venue provisions to address the circumstances giving rise to the agreement can have unintended consequences and should be addressed when negotiating non-disclosure agreements.
Parties to the Agreement
Typical NDAs are one-way agreements. There is a disclosing party and a recipient party, and it’s generally easy to identify both of them at the beginning of an NDA. However, before moving on to the rest of the agreement, consider whether there are other people or companies who could reasonably be considered parties to the NDA.
If the recipient party is a subsidiary of a larger organization and may have a business need to share information with the parent company or a related business, the NDA should identify those entities by name as well. Similarly, if there is an understanding that either party may need to rely on an agent, business partner, or another third party in performing its obligations under the NDA, such third parties should also be named.
Governing Law and Venue
The choice of law and venue provisions in an NDA establish which jurisdiction’s laws will govern any disputes that may arise under the agreement, and where such disputes will be adjudicated.
When choosing a jurisdiction for governing law, consider that the laws chosen will govern disputes about enforcement of the contract and about the interpretation of contract provisions. The venue chosen controls where legal action will occur, if it becomes necessary.
The disclosing party, typically the business requiring that the NDA be signed, usually identifies its state or jurisdiction’s law as the governing law and its local court framework as the venue for the agreement. Generally, choice of law and venue use the same jurisdiction. However, they can be different if there is a valid business reason for doing so, and if the parties agree to such terms.
Baer Reed can provide services for reviewing and negotiating non-disclosure agreements . To learn more about our NDA services contact us today.
Mr. Reyes graduated with honors from the Ateneo de Manila University, where he received the Procter and Gamble Student Excellence Award. He obtained his Juris Doctor degree from the Ateneo de Manila School of Law. During law school, Mr. Reyes was part of the Philippine delegation to the Willem C. Vis International Commercial Arbitration Moot held in Vienna, Austria. He was also a member of the Ateneo Society of International Law and the St. Thomas More Debate Society. He completed his internship at the Public Attorney’s Office. He wrote a thesis entitled: “To Kill A White Elephant: An Analysis of the Fiduciary Exception to the Corporate Attorney-Client Privilege”. Mr. Reyes is admitted to practice law in the Philippines and the State of New York.
Ms. Lardizabal-Manzano is a graduate of San Sebastian College-Recoletos, where she earned her B.A. in Political Science. In 2003, she received her law degree from Lyceum of the Philippines and was admitted to practice law in 2004.
Matthew Hersh earned a B.A. in Political Science from Columbia University in 1990 and graduated cum laude from Georgetown University Law Center in 1999. He also holds a master’s degree in international relations from the Georgetown University School of Foreign Service.
Cap. Avi Levak (Res. IDF) graduated from from Israel’s prestigious Ben-Gurion University of the Negev with a Bachelor of Science in Computer Science and Mathematics. He is also a Leadership and Communication coach trained in TuT coaching by Alon gal in Israel. Avi specializes in high-level, in-depth analysis of business and client needs, within systems and software strategy and architecture.
Ms. Tyler graduated cum laude from Georgetown University and received her law degree, cum laude, from Georgetown University Law Center. During law school, she interned at the United Nations Economic Commission for Europe. She also worked on The Tax Lawyer journal and was a member of the award-winning Barristers’ Council Mock Trial Team. Ms. Tyler is admitted to practice law in the State of California and the District of Columbia.
Ms. Cruz-Anonuevo graduated cum laude and top nine in her batch from Miriam College with a degree of Bachelor of Arts in InternationalStudies. She obtained her Juris Doctor degree from Ateneo de Manila University School of Law in Rockwell. During law school, she interned in Rivera, Santos, Maranan & Associates. She was also part of Ateneo’s Labor Law Bar Operations. She wrote her thesis on, “Stealing Privacy: Limitations on Media’s Photographic Invasion.,” Ms. Cruz-Anonuevo is admitted to practice law in the Philippines.
Ms. Aquino-Batallones obtained a Bachelor of Arts degree in Development Studies (with Minors in Global Politics and Hispanic Studies) from the Ateneo de Manila University. In 2011, she received her Juris Doctor degree from Ateneo de Manila University School of Law. During law school, she interned at Romulo Mabanta Buenaventura Sayoc & de los Angeles then became an intern of Ateneo Legal Services Center’s Clinical Legal Education Program.
Mr. De Guzman graduated from San Beda College with a degree of Bachelor of Arts Major in Economics and received his law degree from San Beda College of Law. He is multilingual and is fluent in three languages: Chinese, Filipino, and English. He was admitted to the Philippine Bar in 2003.