Thanks very much for this comment. I'm glad I looked back on my threads page and saw it!
First, I should make clear that I did not set out to write the very best NDA possible. Rather, I set out to write the NDA that I thought companies and their counsel would find the quickest and easiest to approve. In other words, to reflect current practice, which we might both to agree falls well short of optimum.
Alas, my experience from prior projects is that better terms don't provide enough incentive to standardize. Everybody likes their NDA, and the difference between OK and better isn't compelling. But my hope is that if we standardize otherwise, through CT's self-propagating mechanism, that standard can then become a platform for better terms.
Now to your points on employees and confidentiality.
The covenant to sign NDAs with employees is essentially a commitment to best practice. The parties are confirming that NDAs, or more likely CIIAAs, are part of the hiring packets for both sides. Note the exception for professionals under non-contractual confidentiality obligations, like lawyers. That tracks reality, in my experience.
You are correct that absent express language, and without privity, disclosers could end up without direct claims against breaching employees. That's an absolutely fair point, though I'd hasten to add that the company, rather than its employee, is usually the deep pocket, and an injunction to the company is usually what's needed to stop any bleeding.
The terms addressing employer responsibility are in section 4(m) of version 1.1.0:
> (m) Compliance and Oversight.
>
> (i) Receiving Party shall ensure that its Advisers abide by the confidentiality obligations of Receiving Party under this agreement. If Receiving Party is a legal entity, Receiving Party shall also ensure that its Personnel abide by the confidentiality obligations of Receiving Party under this agreement. Breach of Receiving Party obligations by Receiving Party Personnel or Receiving Party Advisers will be deemed breach of this agreement by Receiving Party itself.
>
> (ii) If Receiving Party is a legal entity, Receiving Party shall provide Disclosing Party copies of confidentiality agreements with Personnel who receive Confidential Information on Disclosing Party request.
Again, thank you very much. Writing what you did took time, I know.
If you'd like to discuss further, please do e-mail me. Otherwise, I can't be sure I'll see it. I'd be more than happy to make time for a call, or arrange a meal, coffee, or libations next I'm down to San Jose from Oakland.
First, I should make clear that I did not set out to write the very best NDA possible. Rather, I set out to write the NDA that I thought companies and their counsel would find the quickest and easiest to approve. In other words, to reflect current practice, which we might both to agree falls well short of optimum.
Alas, my experience from prior projects is that better terms don't provide enough incentive to standardize. Everybody likes their NDA, and the difference between OK and better isn't compelling. But my hope is that if we standardize otherwise, through CT's self-propagating mechanism, that standard can then become a platform for better terms.
Now to your points on employees and confidentiality.
The covenant to sign NDAs with employees is essentially a commitment to best practice. The parties are confirming that NDAs, or more likely CIIAAs, are part of the hiring packets for both sides. Note the exception for professionals under non-contractual confidentiality obligations, like lawyers. That tracks reality, in my experience.
You are correct that absent express language, and without privity, disclosers could end up without direct claims against breaching employees. That's an absolutely fair point, though I'd hasten to add that the company, rather than its employee, is usually the deep pocket, and an injunction to the company is usually what's needed to stop any bleeding.
The terms addressing employer responsibility are in section 4(m) of version 1.1.0:
> (m) Compliance and Oversight. > > (i) Receiving Party shall ensure that its Advisers abide by the confidentiality obligations of Receiving Party under this agreement. If Receiving Party is a legal entity, Receiving Party shall also ensure that its Personnel abide by the confidentiality obligations of Receiving Party under this agreement. Breach of Receiving Party obligations by Receiving Party Personnel or Receiving Party Advisers will be deemed breach of this agreement by Receiving Party itself. > > (ii) If Receiving Party is a legal entity, Receiving Party shall provide Disclosing Party copies of confidentiality agreements with Personnel who receive Confidential Information on Disclosing Party request.
Again, thank you very much. Writing what you did took time, I know.
If you'd like to discuss further, please do e-mail me. Otherwise, I can't be sure I'll see it. I'd be more than happy to make time for a call, or arrange a meal, coffee, or libations next I'm down to San Jose from Oakland.