So, what is wrong with our NDAs? What are the reasons for them to fail to provide protection we expect from them? Well, here are some points that make for 99% of all NDAs to be like this.
99% of all NDAs provide ONLY 1% of what we expect from them
Here's the first shocking fact about the NDAs it took me quite a while to accept. The power of NDAs has nothing to do with the law itself, but rather with our fear instead. Yes, that's the catch. We fear of the NDAs and what they may do to us. This is why, we are so compliant. Now, the trouble is that our law system, the Internet, and especially the NDAs are based on two things: trust and fear. As long as we are doing what we are supposed to do, the law itself doesn't have to interfere.
Yet, you expect that the NDA will either protect or harm you, depending where you stand as a party that has signed it. Did you know that an NDA can get you only a settlement in the court of law? Unfortunately, this is the maximum you can expect from your NDA. Now, you have heard fantastic stories about the scary and powerful NDA. I hate to ruin the party, but these NDAs are reserved for IT and other corporate giants, such as Amazon, eBay, Facebook, Google, and others. They have an army of lawyers and almost endless resources to make sure that their NDAs are fully protected and most importantly brutally executed. What do you have? You will address your lawyer or the court, and the only thing you will hear is, would you be so kind to reach a settlement? Try to negotiate your problem with your NDA signing party. Then, you will say, but my idea is worth millions of dollars, both the lawyer and the judge will raise the eyebrows just to let you know how realistic is your compensation claim.
99% of all NDAs don't have a financial clause
The NDAs are all about the money, aren't they? Yet, the overwhelming majority of them miss a simple compensation line. Why? Well, that's beyond me. I guess people just copy/paste free online forms with no time or desire to adjust them for their individual needs and requirements. This is how an NDA basically becomes ineffective. Show me the money is and should be the basic principle for any NDA. If you or the other party fails to comply with the NDA, a certain amount is to be paid to rightfully compensate all losses and troubles you may have. Now, there's one more problem regarding the financial components of the NDAs. People either don't put a single line about the compensation amounts or put some ridiculously high sums. In both cases you won't get a single dollar you believe that is rightfully yours. So, the first thing to check or do is to put the amount you think is fair to compensate you accordingly. If you are signing an NDA, then make sure that the compensation claim doesn't ask from you hundreds of thousands of dollars.
99% of all NDAs have mission impossible jurisdiction clauses
You are located somewhere in the USA. Your freelancer lives in India. Your NDA says that the courts in London are to be addressed in the case of the contract's breach. That's a lovely scenario. Yet, even if you change the jurisdiction in order to favor your local courts, which is something you are entitled to do, how do you plan to reach the other party at the other side of the glove, and vice versa? My word of advice is that you shouldn't put a lot of faith in your NDA. Better to check who you are dealing with, than to expect that the NDA will give you all the protection you need. Also, if you have to work with people, who are supposed to contribute to your project from half across the globe, then find some help. For instance, you can hire them by using some of freelance platforms, such as Upwork or Freelancer. Why? Well, they have NDAs that can be associated with the projects you are working on. Let them take care of all the trouble associated with the potential breaches.
In a way, an NDA works as an insurance policy. You sign it and hope for the best. Don't expect that you will get your money automatically. You may easily end up with no money at all. At the same time, this doesn't mean that you should become an Internet outlaw. You sign a dozen NDAs and you don't care. I signed quite a few NDAs in my freelance career. And I'm a good cyber-boy. I simply don't want to think what can happen to me, if I breach them. Why should you put yourself in a troubling situation from the legal point of view? Very simple, isn't it?
99% of all NDAs are painfully ambiguous
This is what happens when you don't want to adjust a single line of the NDA you just downloaded. General terms don't give you the specific amounts of money you're hoping to get in the first place. A properly written NDA should be very specific. It should include a list of points that are important to be protected and never disclosed. An NDA should be surgically precise and accurate. Instead, what we have are ambiguous documents with no specific clauses and clear instructions what needs to be done in the worst case scenarios.
So, what am I supposed to do with NDA?
Well, it's better to have an NDA, than it to run the business or work on the project with it. That's a very simple and an obvious fact. However, you should pay more attention to the person who is supposed to sign it than the NDA itself. Also, you have downloaded your NDA in less than 5 seconds. Then, who or what is stopping you from investing additional five minutes to check all the previous points and make sure this contract is a perfect match for your situation. My advice is, use the NDAs, but don't rely too much on them. Also, invest a little bit of your time and money, so you don't end up in this problematic 99% category of ineffective NDAs.
I sure hope that you will find these points to be useful for your marketing projects and people you are planning to work with. All contracts, including the NDAs shouldn't be treated as some kind of rocket science. At the same time, you shouldn't allow yourself a luxury to take them for granted. Better to invest your money in new projects than to pay lawyers and court fees. Right? Trustworthy persons don't have to sign an NDA in the first place, but if you have no other choice, than create your NDA the right way.