Perfecting a Presentation of a Non-Disclosure Agreement

What is a Non-Disclosure Agreement?

A non-disclosure agreement (NDA), also known as a confidentiality agreement, is a legal concept commonly used in commercial relationships. An NDA establishes a confidential relationship between a party that has valuable information and a party that has access to that information. In so doing, it provides a high level of assurance that the information will not be disclosed to third parties or be used for any unauthorized purposes.
For example, a party might wish to disclose certain customer lists, financial records or patentable developments to another entity for business purposes, but does not wish to enter into a full-blown agreement that may include licenses or sales terms and will contain the loaned information. In a situation like this the party could hand over the documents and have the other party sign a simple NDA to keep the information protected against the outside world.
Trade secrets law provides no remedy for the misappropriation of the secret unless the owner can prove that the secret was being properly preserved—that is , not generally known or readily ascertainable, etc. Without an NDA, it may be difficult to prove this because the other party typically could not be restricted from disclosing the information he or she now possesses, even if the [discloser] didn’t intend to convey such permission through the act of providing the information to him. Instead, an NDA sets out what cannot be done, and from the other party’s standpoint, the act of signing the NDA conveys an understanding of how he or she should treat the disclosed information.
For a business to thrive, it will often be required to disclose compelling information, especially proprietary or sensitive information. By putting an NDA in place, the business essentially says to the receiving party, "this information is confidential, let’s treat it that way."

Key Things to Have in a Non-Disclosure Agreement

The key elements in an NDA include the definition of confidential information, the obligations of the parties, the remedies in the event of a disclosure, and the amount of time that the recipient must keep the information confidential. The definition of confidential information, while unique to each NDA, almost always includes any memoranda, notes, drawings, records or other documents with information developed by one party and provided to another. Sometimes the definition section will also include emails and texts.
Frequently, there will also be a definition for "treat as confidential" which might mean that the party receiving confidential information must treat that information at least as carefully as it treats its own confidential information. Other definitions that may be included are:

• Permitted Disclosure. This section defines under what circumstances a receiving party may disclose confidential information to third parties without breaking the NDA.
• Time (Term). The term of the NDA may be set forth, but that may not define how long the obligation to keep the information confidential lasts.
• Injunctive Relief. This section sets forth the consequences if there is a breach of the NDA. In the event of a disclosure of confidential information, the obligations may include requiring the other party to return or destroy any documents containing the confidential information.
• Confidentiality of Term. What must be kept confidential and what can be disclosed and under what circumstances.

How to Prepare for a Non-Disclosure Agreement Presentation

To present effectively, the drafter must know their audience. Is your audience your client, another party to a transaction, or the press? What level of knowledge does your audience possess regarding the subject matter? Are you communicating with attorneys about a lawsuit, corporate executives and perhaps consultants regarding a product launch, or the press about a new venture? What else do these people know?
Assuming that you are presenting a new page on your website, you know that the relevant audience does not include anyone merely passing through. That makes it likely registrants seeking only anti-spam, scam, or scam-fraud information will not bother to look past the first paragraph of the NDA. If you are talking to deal-makers about the NDA covering a product launch, you want to explain the NDA in quick, simple, and accurate terms. If you are talking to attorneys about a possible litigation, you’ll want to be sure to clarify just what the NDA is and is not. The NDA may be an ironclad gift or non-dilution agreement between trusted partners obtaining a loan from a trust. Or, it may be the kind of dragnet sure to generate a rear-guard action when first presented to a client.
In every case, you’ll want to think about how to explain yet maintain the NDA’s privacy, confidentiality, restrictions on use, time period, reverse obligations, and dispute procedures. You need to decide whether the preceding NDA environment is proper and whether your audience wants or needs to know about your previous NDAs, joint ventures, and trust agreements that may be swept up into the NDA’s scope.
Next you need to consider just how accurate your NDA drafter and negotiators should get. Is this information going to be news to the recipient? If so, they will appreciate a little less brevity in the NDA presentation. If no, how many times do the principal concepts need to be restated? How forcefully?
You should also consider how best to emphasize the NDA’s key points. For example, for each point you write down, consider one of the following communication enhancements:
Then, of course, no matter how you approach it, you need to practice your plan of attack on this NDA presentation.

Visuals and Other Materials for a Non-Disclosure Agreement Presentation

In our technologically advanced world, the effectiveness of a presentation can often come down to the appeal of its visual components. Whether you are pitching a client or preparing a presentation for partnership, it goes without saying that you need to bring your A-game. Visual strategies can help you produce a compelling and professional presentation that will intrigue potential clients. In addition to the aesthetic benefits it offers, there’s also a practical benefit to creating a slide deck or infographic: they can help you stay on task during your presentation, keeping you from forgetting key points and losing track of time.
Slideshows are one of the most effective tools at your disposal for your client presentation. Although they rely on a linear format, which can sometimes be difficult to customize to your audience, slideshows provide one of the best mechanisms for creating a structured and compelling presentation:
Infographics are an increasingly popular method of presenting NDAs to potential clients. While they may seem impersonal, there are many upsides to using an infographic. They convey a high volume of information in an appealing, visually stimulating format, and they can be produced relatively quickly with the assistance of infographic templates. Another advantage of infographics is that they are highly shareable, so if you’re presenting to a large group, there’s a good chance someone will post yours to social media or share it elsewhere online. This is a great way to create buzz about your brand and your business. You can also distribute infographics digitally without worrying about paper documentation. For these reasons, infographics have become a popular additional tool for attorneys.
Interactive visuals may be physically produced, such as flipbooks or foldout maps, or they can be digital, such as simulations or animated videos. These types of visuals present a unique and highly customized experience for clients. Interactive visuals can garner attention from your audience and keep people engaged throughout your presentation. They are especially useful for potential clients who may not be familiar with your area of expertise. Because these types of visuals are not widely used or commonly available, they are also a great way to set yourself apart from the competition.

Tactics for a Powerful Non-Disclosure Agreement Presentation

We have recently had many interesting discussions about how to present (almost) every clause of an NDA, which is always very enjoyable for me as a lawyer, educator and all things in between.
However, what I often find challenging is how to talk about the NDA as a whole to non-lawyers.
In a master class about NDAs yesterday, I learnt from an audience of experienced senior professionals from around the world that the matter can be so challenging, that they avoid the subject. That is a shame as avoiding the subject can lead to painful litigation!
One of the messages I heard yesterday is that:
This refers to contracts generally, but NDAs too.
My aim in this post is to make some comments about how to get there.
What I frequently see is lawyers rushing in to explain vital points relating to how the confidentiality process will work and be enforced if the parties proceed with doing business together.
Getting what an NDA is about together first is not a good alternative.
My recommended approach is to start with 1 or 2 sentences about the purpose of the NDA. For example:
"NDAs help XYZ businesses protect their valuable ideas and information to make sure they are not used without the permission of the business owner or owners . "
This suggests it is a broader issue that involves business owners, both those who may be selling / licensing / founder of XYZ business and it also avoids any gender specific language. It also starts to explain the "other side" of the discussion – why they want to share their valuable ideas and confidential information.
If lawyers are involved because there is significant commercial value in the effort, the clients normally agree on the purpose of the NDA quite quickly. They will get round to agreeing on all the legal details later…
Next, it is important to set the tone of the meeting. Presenting an NDA like an aggressive lawyer (here’s one example) is not going to go down very well with your clients. Instead, this is a great opportunity for lawyers to show clients that we get things done without being unnecessarily aggressive. You can show your strength and competence by being courteous, but firm.
Other important things include:
Getting into the detail too soon is frequent mistake. So is blaming the other side’s lawyers. We see those strategies where we are not impressed by the lawyers and their clients are often offended by the comments made about their lawyers. To us, it comes across as a form of passive aggression that we absolutely cannot stand.
Make sure that you talk to an NDA presentation example that is relevant for your audience.

Capturing the Audience

Engaging the audience will provide significant benefits. The presenter and the audience can be on the same wavelength and engaging the audience can assist the presenter in covering all of the provisions of the NDA. When I have conducted these presentations, the audience is a very knowledgeable group. I have had these NDAs trip up seasoned business people and attorneys at the same time. I view the presentation of the NDA as an opportunity to educate, as opposed to just read the NDA or PowerPoint slides. Once again, you find yourself in the unique position as a lawyer of being the educator. By asking questions, keeping all of the audience engaged, it becomes a group exercise. The audience can certainly tell you when they do not understand the NDA. One of the best ways to keep their attention is applying real-world examples to the NDA. When I was in law school, one of my favorite classes, Legal Writing, I had a tremendous professor who taught by way of engaging with students to explain both precedent and application of the law. His methodology has stuck with me to this day. Keeping the audience engaged is one of the best techniques I learned, I find myself using the same engagement method in presentations or lectures, regardless of the topic.

Off-limits Questions in the Question and Answer Period

Welcome to the world of non-disclosure agreements. You’ve mastered PowerPoint slides, you’ve memorized the definitions of all the legal terms, you know the NDA forwards and backwards, left to right, and side to side. But how do you handle the Q&A session? How do you answer all the questions to the audience’s satisfaction?
First of all, you have to anticipate the questions that will be asked of you. Then you have to prepare to answer those questions. You should spend a good amount of time preparing for this part of the presentation. Come up with as many potential questions as you can and prepare answers that would be helpful to the audience. The way you answer these questions is critical to how your audience will perceive you in the future, especially if they are your clients.
Let’s take an example. "Mr. Sox, can you tell us about liability and indemnification?"
Great question. One that I have no doubt in my mind that you will be asked. And I have no doubt that you have prepared an answer ahead of time. So what is your answer?
You currently have two responses to choose from. Both are perfectly acceptable. The problem is that there are degrees of correctness. Let’s look at both, shall we?

1) "Well, uh, that’s a good question. A liability waiver basically waives a party’s rights to sue if the other party doesn’t adhere to the terms of the NDA, and indemnification is the, um, you know, the promise by one party not to sue the other if the conditions, uh, you know, are not met, uh, you know, and, um, you know, I mean it’s just so hard to say what is actually included — because it’s all just legal mumbo jumbo. I hope that helped."
2) "Great question. Liability and indemnification are two slightly different although possibly complementary forms of protection.

"If an indemnification clause is included in the Non-Disclosure Agreement, it will offer the strongest possible protection to you by ensuring that if any liabilities arise out of the non-disclosure agreement, you will not be liable in any way.
"One example would be if an employee left your employ in the middle of a contract and went to work for one of your competitors. If that competitor were to for example, steal trade secrets from you, that could likely result in liability.
"If this were to happen and you were insured, you would file a claim against the employee, and not against the employer, because the employee violated the terms of the NDA. The employer would be the indemnifying party, meaning you would not bear any damages that might arise from this violation.
"Repudiation of the contract has the precise same effect on liability as does breach of contract, so you will find a repudiation clause in most contracts as well. In those rare cases in which an employee were to repudiate the contract, the employer would be liable for the actions of the former employee under the indemnification provisions of the contract.
"In other words, indemnification is a form of protection from liability. This is an excellent question."
Obviously, Response 1, even though correct to the extent that it contains the correct elements of a response, also signals incompetence on the part of the attorney. Response 2, however, actually signals to the client that you understand the terms of the agreement and know how to follow through when the agreement is violated.

Post Presentation Follow-up

If you prepare the NDA presentation in the manner I suggest, you will inevitably leave some questions unaddressed. By definition, there will be concerns that may have been on the minds of your audience but that you missed — and concerns that are not on their minds but should be.
You must follow up within a day to two days of the presentation with an email that restates the key points of the presentation and the questions and concerns that you plan to address. You should say that you will provide those answers separately, in advance of the scheduled meeting to finalize the NDA.
With respect to any points left unaddressed in the presentation , you should also say that you will provide answers after the presentation.
Finally, you must include the text of the NDA in the email response. You can omit any definitions or provisions that you did not cover in the presentation, but you should include and explain the next steps in the process of finalizing and executing the NDA, and in beginning the relationship. For example, you may need to exchange copies of any documentation identifying the company that will enter into the NDA on behalf of the other party or its affiliate, such as certificates of incorporation, operating agreements, or partnerships.