If you have already disclosed proprietary or confidential information, but are willing to move forward with confidence with the other party and all necessary conversations have taken place, it is possible to design the confidentiality agreement with an identical validity and execution date, as usual, but contains a clause covering previous disclosures. Now you are ready to go ahead with one of the investors, and you are wondering if you should get the agreement signed. This is a complex issue that has not received a complete answer, but for the purposes of our subject, it would be a reasonable period of time to design an agreement with a retroactive date, to include disclosures that took place prior to the completion of the investment. This would protect you as well as the investor. Document the employee`s rights and company rights. If you wish to have the freedom to terminate the employee at any time and for any reason, or if you wish the employee to have the freedom to stop at any time and for any reason, insert an “At Will” clause in your contract. An example of the will clause is: “The worker understands and accepts that employment is not guaranteed. The company and the employee reserve the right to terminate the employment at any time, without reason or notice. Before writing or signing a retroactive agreement, do some research, choose your words carefully and exercise caution. Well done, they can be very useful. Bad execution, however, and you might find yourself in a world of pain. This may not always be your best option, but if you are almost certain that your previous revelations were in good hands and that there is no other reason to reject the full agreement, this clause can cover all your bases.
But backdating (or adding a retroactive date) can be a difficult business, perhaps even more so with NOA agreements because of their nature and content. There are a number of things that can go wrong if they sign a confidentiality agreement with a retroactive date. We`re going to see Biggies here. Nevertheless, there is a reasonable amount of time to go back to this type of confidentiality agreement and many will agree that it is not unethical or unusual. If this is the case, an agreement with a retroactive date can bring enormous benefits to all parties involved. First of all, you should be aware that requesting an NDA with a retroactive date for some in the world of justice is considered a “Bush League” and should not be taken lightly by the party at the other end. Either the clause may require that the receiving party be sued, that no disclosure of confidential information that has already been disclosed has been made. Or, if certain confidential details have already been disclosed by the recipient party, these may be explicitly mentioned in this clause, with the assurance that no other information has been provided, except for those specifically mentioned. Another tricky situation in the event of a retrodated confidentiality agreement is the possibility that the recipient party did not inform your confidential information of its confidential obligations prior to the signing of the agreement.