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Tenant Leasing Illustrated – July 2019 – This Is Your Non-Disclosure Agreement On Puns

This Is Your Non-Disclosure Agreement On Puns

My son Noah has mastered the art of the eyeroll, particularly after one of my stellar attempts at humor.

Apparently, scientists have looked into this interaction, as reported in the Wall Street Journal in a recent article entitled “What Can Science Tell Us About Dad Jokes?”

The article starts out with “Most people can recall a moment when their father tried to be funny and failed badly.”

Reaction from my son Adam: “Sounds accurate so far.”

And from my colleague and herself a mom Julia: “Dads are toddlers.”

C’mon team, where’s the love here? Without a stream of lame dad jokes the brilliant prose of Leasing Illustrated and its vast contribution to American literature could not exist!

The WSJ article gives as an example of a dad joke: “Two guys walk into a bar. The other ducks.”

I often go with: “A horse walks into a bar. Bartender says to the horse: ‘Why the long face?’”

In each case, sophisticated humor at its best.

A psychologist quoted in the article (from my alma mater, the University of Rochester – coincidence? I think not) says that puns and terrible dad jokes bring a father and child closer and that humor and playfulness while parenting can help children as they cope with growing up.

Or maybe we dads are just toddlers.

A low point for me. One of my puns was so bad I was told it was a grandpa joke. Now, that’s not funny!

Keeping your confidential information confidential as you enter into a commercial lease is no laughing matter.

We have discussed in past newsletters how to limit the confidentiality provisions that a landlord might wish to impose on its tenants in a lease.

But when entering into a new lease a tenant will be required to provide certain financial and other proprietary information and in this situation it is the tenant that should be imposing confidentiality on the landlord.

This is done through a confidentiality agreement or non-disclosure agreement (NDA) pursuant to which the landlord agrees not to disclose its potential tenant’s financial and other proprietary information except in limited circumstances.

Unless the information is publicly available, prospective tenants should insist on their landlord entering into a comprehensive NDA before providing such information.

I would tell you more about NDAs but I can’t. Why? It’s confidential!

Oh c’mon Noah, what’s with the eyeroll!

Follow these nine suggestions and at least your NDA will not be worthy of an eyeroll:

  • State confidentiality. Perhaps obvious, but your NDA should clearly state that you are the sole owner of all of your information and that it is to be kept confidential and not disclosed or used by your landlord except in accordance with the terms of the NDA or as otherwise agreed by you in writing. This use should be limited to evaluation of the particular leasing transaction.
  • Define “confidential information”. You will want your definition of “confidential” to be as broad as possible, covering all information previously or to be made available to your landlord and all analyses, compilations, studies or other documents prepared by your landlord that contain or otherwise reflect such information.
  • Avoid specific identification. Some NDAs provide that only information identified in writing by you as confidential shall be deemed confidential. This can greatly limit the universe of confidential information and hence your landlord’s exposure, but any information provided by you as part of your landlord’s due diligence should be kept confidential.
  • Specify customary exclusions from the defintion. All NDAs include relatively standard exclusions from the definition of “confidentiality” but these should be clearly stated. These include information (a) in the public domain other than as a result of a disclosure in breach of the NDA by your landlord, (b) lawfully obtained by your landlord from a third party without a duty of confidentiality to you that is known by your landlord, or (c) independently developed by your landlord.
  • Provide appropriate exclusions from the non-disclosure requirement. Your landlord will also require customary exclusions as to when confidential information can be disseminated. These include allowing (a) the release of information for which disclosure is required in order to comply with any law, ordinance, governmental decree or any rule or regulation of any governmental body or any court, (b) distribution to permitted participants such as your landlord’s employees, partners, attorneys, accountants, lenders, advisors, etc. and (c) disclosure during a dispute between you and your landlord.
  • You may wish to require each such permitted participant in (b) above to enter into its own NDA, but this can be a burdensome obligation so as a compromise you can agree to have your landlord advise the permitted participants to whom it discloses such information of the confidentiality obligation under the NDA and agree to use commercially reasonable efforts to cause such permitted participants to abide by the provisions of the NDA.
  • With respect to disclosures required by law, you can require that your landlord provide you with prompt written notice so that you can seek a protective order and, if not obtained, that your landlord furnish only that portion of the confidential information which it is advised by counsel is legally required.
  • Allow for injunctive relief. Your landlord should acknowledge that disclosure or use of the confidential information in breach of the NDA would cause you irreparable harm and that damages would be inadequate to compensate you so that such disclosure or use or threatened disclosure or use will entitle you to pursue injunctive relief. Often this acknowledgement is accompanied by an agreement by your landlord to notify you if your landlord becomes aware of any unauthorized use or disclosure of the confidential information, to assist you in every reasonable way to retrieve such confidential information and to mitigate any harm caused by such unauthorized use or disclosure.
  • Require an indemnity. This is a reasonable request and should cover any damage, loss, cost or liability (including legal fees and the cost of enforcing the indemnity) arising out of or resulting from any unauthorized use or disclosure by your landlord or its related parties of the confidential information. You will no doubt be asked by your landlord to exclude consequential damages and include other customary limits on indemnification (such as damages caused by your own negligence or willful misconduct).
  • Address duration of the confidentiality requirement. It is preferable to have a confidentiality obligation of unlimited duration but a limitation of one to three years is often reasonable.
  • Require return. In the event of the termination of your lease or if a lease is never entered into, you should be entitled to require that your landlord return or destroy all physical and written records of every kind containing the confidential information.

A grasshopper walks into a bar. Bartender says: “Hey, we have a drink named after you.” The grasshopper looks at him somewhat surprised and says, “Fred?”

The WSJ article indicated that people who cannot stop delivering puns and bad jokes, dads or otherwise, might suffer from a frontal lobe injury. What about if you keep putting them in your newsletter?!! Follow the suggestions above and your NDA will be no joke.