Do I need a freestanding NDA if my other agreements cover confidentiality?
It depends. A freestanding non-disclosure agreement (aka “NDA”) is often used if the parties need to exchange information before finalizing the main agreement. This happens with a proposed business acquisition or joint venture or if the parties are planning a strategic alliance. You also might want a freestanding NDA if you desire more comprehensive protection around your information assets. For many businesses, their information assets are their most valuable business assets (such as a customer list or key business process). So, the more comprehensive, the better.
A confidential clause (as opposed to a freestanding NDA), for example, is often not that comprehensive. It’ll include the non-disclosure obligations, the definition of confidential information, and a term, but it will typically leave out use and access restrictions.
If you use both a freestanding NDA and have confidentiality provisions in your main agreements, make sure they don’t conflict. An easy way to prevent conflicting contractual obligations is to have the main agreement simply reference the freestanding NDA. This clause might read as follows:
“Existing NDA. The parties executed a Non-Disclosure Agreement on [DATE] (“Existing NDA”). The parties agree the Existing NDA will continue to govern all disclosures of “Confidential Information” (as defined under the Existing NDA) as between the parties in furtherance of this Agreement and their business dealings.”
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