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To NDA or not to NDA?

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This blog post was written by Mary Juetten, founder of Traklight.com, a site that provides inventors, creators, and small businesses with integrated software tools to identify and protect intellectual property.

Startups and small businesses are torn when it comes to protecting their ideas. There is a challenging balance between keeping the critical pieces secret and promoting products and services during fundraising – whether with angel investors, venture capitalists (VCs), or crowdfunding platforms.

 The NDA question comes up more than you would think because scrappy entrepreneurs are always looking for collaborators, co-founders, and capital while jealously guarding their ideas.  At least once a week, I hear one side of this debate or field a question on the topic.

 

What is a NDA?

Let me first say I am not an attorney (see the disclaimer at the bottom of this article). That being said, a Non-Disclosure Agreement (NDA) is a legal document used to protect ideas, know-how, and other secret sauce under a variety of circumstances.

One standard use of a NDA is protecting one company from another during discussions and negotiations. That means, if I approach Company A to code my software application, I want Company A and all their employees and contractors to keep all discussions about my project confidential.  In the same situation, a mutual NDA means that everything Company A discloses about how they will work with me needs to be kept secret by me and my team. If I have a mutual NDA with Company A, I cannot go to software Company B and spill secrets learned from Company A.

As I said, I am not an attorney however I did go to law school (and yes, I graduated but chose to start my company rather than take the bar).  The answer to almost every question in law school was, “It depends.” And that is the case here.  Requesting and/or insisting upon a NDA depends on the situation. Are you hiring an employee? An independent contractor? Perhaps you are hiring a company for custom work, or are talking to potential co-founders, angel investors, or venture capitalists. Or maybe you are sharing information to collaborate or simply chatting in the grocery line.

 

NDA for Employees and Contractors    

It’s my humble opinion that employees and contractors should be under NDA when you are revealing your know-how during initial discussions. It is purely good business sense to ask for that level of protection. The “I’ll show you mine, if you show me yours” strategy can backfire without a NDA, not to mention these handshake deals are not professional and can lead to messiness (a distraction when trying to start or grow a business).

 Please seek professional advice to ensure that your contracts of employment, consulting, operating agreement, articles of incorporation, etc. have the appropriate non-disclosure provisions for your state.

 

NDAs are questionable for angels; NO for VCs

It is high unlikely the professional investor wishes to steal your idea. The main reason angel investors are reluctant to and venture capitalists (VCs) often refuse to execute a NDA is because they may then be limited in the future from funding similar companies.  Another reason is that your company and products may conflict with their existing ventures.

One path forward is to only reveal enough information to interest potential investors while keeping mission critical secrets secret, especially in the first meeting. 

 

No NDA for public pitch or demo competition    

Trade secrets are no longer secret if revealed to the public. There is no confidentiality in a public setting, so leave your secrets at home. Disclosure of such secrets may impact the ability to patent here in the US and globally, so be careful in any public pitch, tradeshow, or presentation.

All entrepreneurs understand that the tough part is execution, not idea generation. And to be technical, ideas themselves are not intellectual property. So you need to think of the context of your discussion and what you are trying to protect.

Know your audience. If you have the next great software idea and you are not technical enough to code yourself it is likely a good idea to ask potential co-founders or software companies to sign a NDA before you reveal the details of your idea.

Does that mean you carry the NDA in your purse (or briefcase)? You may but it is mostly applicable for the meeting after your initial encounter. When revealing your secret sauce or business process in public, a NDA is critical.

In conclusion, if someone does not wish to sign a NDA, think of the context, timing, and the person before you walk away. That done, if you have that niggling, uncomfortable gut feeling about why the person will not sign the NDA, head in the other direction.

 

 Visit Traklight and use “ID your IP” with Traklight’s compliments until February 28, 2014. Remember, you cannot protect something if you do not know you have it!  Free “ID your IP” Code GROWT13 ($59 value).

 

 Disclaimer: This article is intended to be general information and nothing in this article constitutes legal advice. Please consult with an attorney before making any intellectual property or other legal decisions.

 


 


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