Give Your CDA a Pre-Meeting Check-up
By Brian J. Hubbard // February 20, 2014
Say you plan a visit to a customer. As a salesperson, researcher, or marketer, you appreciate that it’s a top priority to make sure that a confidentiality agreement (CDA) is in place. The customer may have even told you that you’re covered. But as the meeting organizer, don’t just take someone’s word that an agreement is already in place. Besides, it’s critical to get a copy of the agreement.
The CDA, also known as a secrecy agreement or nondisclosure agreement (NDA), ensures that the information exchanged in the dialog between the participants is confidential. Otherwise, the other party is free to use and disclose your company’s information. Not good.
Once you’ve tracked down the agreement, it is imperative to check (or have your legal department check) these 5 points about the agreement:
(1) Is it alive? An expired agreement is no good to anybody. The agreement has to be active, i.e., in effect currently, with a disclosure period encompassing your meeting. If the agreement has recently expired, it may be possible to extend the agreement by amendment, but be aware that an extension cannot normally be prepared at the last minute. Once drafted, authorized signatories from both parties must sign the extension.
(2) Is it showing its age? If your company has extended the agreement a few times already, are there any changes that have intervened over time (such as a customer’s company name change)? The key is to make sure the agreement applies to and binds folks that you will be talking to in the meeting.
(3) Is it coherent? Is the scope of the topics to be discussed clear from the agreement? Are you certain about the boundaries for the discussion (as outlined by the purpose and description of information)? Ignore the laundry list of what forms information may take, and focus on finding some restriction to the relevant field. This will prevent your company from having to protect (and be liable for) extraneous shared information that’s beyond the purpose of your meeting.
(4) Is it balanced? Does the agreement protect both sides (as long as the conversation stays in scope)? As I’ve written before, in a one-way agreement the unprotected party has every incentive to say as little as possible (http://www.condoroccia.com/agreement-drafts-send-wrong-signals). It may be possible to amend the agreement to make it reciprocal, but it depends on the circumstances. Typically, entering into a new agreement will be more efficient.
(5) Any follow-up actions? Some agreements require you to furnish a written summary of the information exchanged within a certain time after the meeting (reduction to writing). Failure to do so will make the information free to use and disclose. Accordingly, you need to be familiar with these requirements and incorporate the summary in your follow-up communications.
Seem too rigorous, or are you feeling that you don’t have time to read the agreement? Remember, it’s better to take the 10 minutes to do this check-up than to spend days on a post-mortem explaining to management how confidential status for your information was lost at your meeting.