By: RSPA General Counsel Jill Miller
I love meeting new people. At this point in my life, I have more industry friends than I have friends from home. I never expected that the last business trip of 2020 would be in the Bahamas at Inspire in January. As I write this article, we have just announced that we will not be holding Inspire 2021. I am an optimistic person, and I will continue to believe that we will get back to seeing our colleagues in person in the not too distant future.
Many of you have started to reach out to me directly to ask your legal questions; thank you for your patience as I settle into the General Counsel position. Set forth below are a few of the frequently asked questions by your fellow members.
Question: Do I really need to spend any time reviewing a non-disclosure agreement?
Answer: Yes! You should read every single agreement that you intend to execute with another party. Many times NDAs are titled “Mutual Non-Disclosure Agreement,” but as you review the language in the agreement, there is nothing mutual about the protections. Usually, a few modifications are necessary to protect confidential information. It is worth the time to review and ensure your most valuable asset is protected.
Question: Can I just send an email terminating an agreement?
Answer: It depends. Every agreement should contain a Notice provision and a Term and Termination provision. I would suggest you first look at the Term and Termination provision and review under what conditions you may terminate the agreement. For example, if the other party has committed a breach, you may be required to give them time to cure the breach before you may terminate the agreement. Perhaps, the current term is about to expire, and you do not want to renew the agreement. Many agreements have an auto-renewal provision unless you provide the other party notice of non-renewal. Finally, it is necessary to look at the Notice provision to determine how you are required to provide notice to the other party. The Notice provision may require that you send notice via certified mail and not mention the ability to provide notice via any other means.
Question: The other party told me they do not typically accept changes to their agreement; should I even consider working with them?
Answer: I would suggest that you have an additional conversation with your potential new partner and highlight some of your concerns. In my experience, reasonable parties consider reasonable requests, often resulting in language changes. With that said, you may still decide to move forward without language changes if you determine the benefit you expect to derive from the relationship far exceed the risks you will be assuming under the agreement.
Of course, if you have any questions, the RSPA Legal Hotline is available to members, and I would be delighted to assist. Stay safe, and I look forward to seeing you in the future.