For the last six months or so, we’ve noticed material changes in the Non-Disclosure Agreements (NDAs) that carriers are asking enterprise clients to sign. Companies report these new confidentiality agreements as restrictive and view them as an attempt to take away the company’s control of their billing information! There are, of course, many different versions of these NDA agreements in circulation, but the most severe pertains to third party Telecommunications Expense Management (TEM) firms. One particular NDA states that the billing information provided from the carrier to the client can only be used for the limited purpose of contract management and re-billing, and that all of the information must be returned to the provider upon request. I’ve seen NDAs that attempted to restrict third party use of rate information, but this expansion of the scope of the NDA to actually claim ownership of the customer billing information is something new. And it may, in fact, violate Customer Proprietary Network Information (CPNI) regulations.

Since fixed and mobile providers are presenting many different versions of these NDAs, an alarming fact in and of itself, it’s important to be aware of certain “danger areas” in these agreements. Don’t be afraid to redline anything you disagree with and push back on the carrier. In fact, the best practice is to offer your own enterprise NDA version as a starting point and require the carrier to accept it.

Things to look out for include:

• Obligations that run to perpetuity. Define a time limit for all confidentiality obligations, even if it’s five years out. This is much better than exposing the enterprise to the risk of a never-ending duty.
• Information that is to be protected must be clearly defined, which is usually done by marking it “Confidential” and reducing verbal communications of confidential information to writing. The burden of defining what is confidential should be shifted to the disclosing party.
• Watch for restrictions that prevent you from sharing information with third party consultants, agents, or attorneys. It’s fine to agree that third parties be obligated to the same standard of care as the enterprise, but some versions of new NDAs don’t mention any third parties at all.
• If an NDA is being required because you are considering the use of TEM services or other third party assistance, be sure and have the third parties’ legal counsel review the agreement and assist in the redlining and negotiations.

While an NDA can seem fairly innocuous, overly restrictive NDAs can prevent full exercise of benchmark clauses and potentially slow down RFP exercises. Some of the new versions out there contain unacceptable limitations. So don’t sign any NDA without a thorough review of the obligations it is creating. And know that these agreements are negotiable. Push back—you’re protecting your right to use your information