An Advisory Board & Board Observer Agreement sets participation terms for advisors or observers in company governance. This playbook reviews confidentiality, fiduciary boundaries, and compensation considerations.
Why This Matters: Strong confidentiality terms safeguard competitive advantages, comply with privacy laws, and reduce the risk of unauthorized disclosures and related liabilities.
Negotiation strategy
If you're the Company:
Ensure that confidentiality obligations are clearly defined and align with the company's business goals and compliance standards. Negotiate for specific carve-outs that protect the company's interests.
If you're the Advisor:
Advocate for reasonable confidentiality obligations that do not overly restrict the contractor's operations. Seek clarity on permitted disclosures and ensure they are feasible.
Essential elements
1
Confidentiality Obligations
Obligations to maintain confidentiality.
2
Permitted Disclosures
Conditions under which disclosure is allowed.
3
Return or Destruction
Protocols for data handling post-agreement.
Action framework
ACCEPT
Propose edits when confidentiality terms are too broad or vague, ensuring they are specific and actionable.
EDIT
Reject clauses that impose unreasonable confidentiality obligations or lack necessary carve-outs.
ADD
Add language to address specific regulatory requirements or business needs not covered.
PRO TIP
Always ensure that confidentiality clauses include clear protocols for data return or destruction to avoid future disputes.
Example clauses
FAVORABLE
Strong Confidentiality Clause
"The Receiving Party agrees to maintain in strict confidence and not to disclose to any third party any Confidential Information received from the Disclosing Party, except as expressly permitted in this Agreement. The Receiving Party shall use the same degree of care to protect the confidentiality of the Confidential Information as it uses to protect its own confidential information, but in no event less than a reasonable degree of care."
NEUTRAL
Permitted Disclosures
"The Receiving Party may disclose Confidential Information to the extent required by law, regulation, or court order, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to disclosure and assistance in obtaining an order protecting the information from public disclosure."
UNFAVORABLE
Lack of Return Protocols
"The Receiving Party is not required to return or destroy any Confidential Information upon termination of this Agreement."
Fallbacks
High-Risk Projects
In high-risk projects, confidentiality provisions should include enhanced security measures and stricter disclosure protocols to mitigate potential risks.
Cross-Border Transactions
For cross-border transactions, consider additional legal requirements and data protection laws that may impact confidentiality obligations.
Joint Ventures
In joint ventures, ensure mutual confidentiality obligations are balanced and reflect the shared nature of the collaboration.
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