The secret master has always had the interest in keeping his intellectual thinking or business model secret, guaranteeing the success of the company. In cases where the master of secrecy wants to materialize his intangible values (for example, Letter of Intent (LOI), ongoing patenting procedure, licensing, transfer of know-how, sale of business, etc.), he cannot fail to reveal certain information and documents to his trading partner who, understandably, does not want to buy unverified money. Although business secrecy is protected by civil and criminal law under Swiss law (see OR 321a al. 4, OR 340 al. 2, StGB 162, etc.), the conclusion of a confidentiality agreement, particularly with regard to the determination of the scope and content of the duty of confidentiality, may be appropriate: with a non-disclosure agreement (NDA), departure ideas may be covered against theft. The problem: confidentiality agreements (here a model) sound good on paper, but have serious drawbacks in practice. 1. NDAs do not work A confidentiality agreement suggests waterproof legal protection. The trade-off between the benefits and costs of litigation is often ignored. Indeed: NDAs are difficult to implement even in concrete cases of infringement, because it is not uncommon for a start-up to lack resources for an extensive litigation: «You simply don`t want to invest the time and the money litigation would require,» says Dorian Selz in a message on the Memonic Blog, in which he usually concludes: NDA — Nixcent agreement. The parties define confidential information, but also parties that are not covered by the confidentiality agreement.
They also specify the amount of penalties for a violation of the treaty by a party and the duration of the secrecy. The term «confidential information» should be defined in the most precise and general way possible within the framework of the agreement. Great article Jan and I completely agree with you. On the 5th point, I would only say that intermediate forms such as closed betas are partly very useful to bring the first users to the platform. Nothing attracts more than a Beta Screen that you want to pass: ) Wow, here someone says it frankly, which I think for a long time. How much time have I already wasted negotiating the details of such explanations for my clients.