non-disclosure and non-compete / ISC booth schedule March 19, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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non-disclosure and non-compete / ISC booth schedule
March 19, 2018
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non-disclosure and non-compete
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Ken
 Do you have Non-Disclosure and Non-solicitation Agreements?   Are they pretty standard industry wide?
Kim
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Response
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    These are two very different provisions found in several different agreements.  The short answer is, yes, we have these agreements, and they are alarm industry specific too.
    Non-Disclosure.  This provision is typically found in an agreement signed by a potential buyer of your business who are going to permit access to your records and confidential information regarding your business.  A NDA, non-disclosure agreement, should be signed by the potential buyer before you start giving any information about your business.  The Kirschenbaum TMStandard Form NDA [which you can order at www.alarmcontracts.com] is a bit broader and stricter than other forms I have seen passed around in the industry, but I think the additional provisions are warranted and justified.  If someone wants to consider buying your business they should agree to whatever confidentiality terms you require.
    A potential buyer may also want you to agree not to disclose that the potential buyer is looking at your company, so it may also ask for non-disclosure.  But non-disclosure requested by a potential buyer [and I do see a NDA requested by a potential buyer, makes little sense to me because a potential buyer isn't really disclosing any confidential information to the seller, other than how it goes about evaluating the potential purchase.  But a potential buyer may ask for an Exclusivity Agreement whereby the seller agrees not to negotiate with any other potential buyers while the potential buyer conducts its due diligence and considers the purchase.  This is a reasonable request as long as the time frame is short and not unduly tying up the seller from making another deal if the potential buyer is dragging its feet or not really interested but unwilling to part ways.
    Non-solicitation:  This is found in several agreements including Employment Agreement, Independent Sales Affiliate Agreement, subcontracting agreement, central station dealeragreement, All in One end user agreements, Asset Purchase Agreement, Stock Purchase Agreement and other agreements that we routinely prepare.  Non-solicitation means exactly what it sounds like - cannot reach out to the prohibited contact; typically the subscribers.  In an NDA it could be employees or creditors or vendors of the seller.  Keep in mind that you asked about a non-solicitation prohibition.  That is different than a non-service prohibition.  You'll get only what you ask for if whoever you're asking isn't adept at these agreements and issues that may arise specific to this industry.
    Something else you should consider.  Asking me if we have a Non-Disclosure agreement or a Non-solicitation agreement is like asking a shoe store if they sell shoes.  Doesn't really give you a lot of information about what is sold, what lines are carried, etc.  What makes Kirschenbaum TMforms different than the forms that may be available in the alarm / security / fire industries?  Continuous feedback, questions and comments which enables us to continuously improve the forms.  
    When it comes to alarm contracts you may think you have lots of choices.  I see it as a choice between the right one and the wrong one; 50/50%.  Make the right choice.  The time to update your contracts is right now.
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ISC West
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    It's been long time since I attended ISC West and I am looking forward to meeting with as many of you as possible.  Don't be shy about contacting me or finding me at the show.  Lot's of free advice will be provided [all of it worth the price you're paying.  Only kidding.]  Right now I'm scheduled to be at a few central station booths, hanging around looking for the give a-ways.  Stop by and see if we can negotiate a better deal for you with the cs.  Here is my schedule so far.
Rapid Response booth    April 11    2 - 4  PM
COPS  booth                     April 12    1 - 2 PM
All American  booth           April 12    2 - 3 PM    
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com