Non-Disclosure Agreement

Key points

Who may be Interested?

Companies

Professionals

Private individuals

Why do you need an NDA?

You want to ensure that your proprietary information will remain private and not publicly available;

You wish to protect trade secrets: secret formulas, designs, development process;

You wish to clarify proprietary information policy to your employees.

Identify the purpose of your NDA in the preamble:

“The parties intend to enter into discussions regarding the [...] ”

You have been granted access to proprietary information of another person or business;

You want to disclose sensitive information to a service provider: accountant, doctor, consultant;

You want to show ideas, plans, prototypes, early stage works.

You are a company You are a private person

ConfidentialityIdentify the scope of CI*:

“any information regarding [Purpose], which is marked as “Confidential”, or with a similar legend denoting the confidential interest of the disclosing party or in respect of which it is or must have been clear to the Receiver that such content or information is of a confidential nature”

*CI - Confidential Information

Identify the actions: how are you going to treat or not to treat CI?

“treat all Confidential Information as confidential by ensuring or procuring that, whilst in its possession, control and power, the Confidential Information of the other party shall be maintained reasonably secure”

“not divulge or communicate or, through any failure to exercise due care and diligence, cause any unauthorized disclosure of it in whole or in part to any person, company, competitor, business entity or other organization except as permitted by this Agreement”

LimitationsSome information may have been already publicly available or developed independently without prior access to confidential information

The use of certain types of information may require special procedures

Disclosure is required by law

Permitted disclosureSpecify to whom and under which conditions CI may be disclosed?

Disclosure is required by law, binding judgment, order of court or for the purpose of public safety

A party wants to engage other person“any such person shall enter into a confidentiality undertaking with the Disclosing Party on terms equivalent to those contained in this Agreement”

“CI will be disclosed only with the prior written consent of the Disclosing Party”

Return of CI

Obligation to return

Obligation to abolish

Obligation to return CI upon the expiration of the Agreement term or after certain actions specified therein came to an end

Ownership

CI disclosure is not a transfer of intellectual property rights:

“Any information, analyses, compilations, notes or other documents derived from or based on the Confidential Information shall be and remain the property of the Disclosing Party. ”

Security

Obligation to protect CI:

“The Receiving Party shall take all necessary steps and precautions, including without limitations reasonable physical security measures to protect the information against any unauthorized access and not to divulge any such information or any information derived there from to any third person.”

Indemnity

Obligation to protect your interest:

“The Confidential Information of each party is, by its nature, valuable proprietary commercial information, the misuse or unauthorized disclosure unauthorized disclosure of CI would destroy or diminish the value of such information [...] Parties shall be entitled to the remedies of injunction, specific performance and other equitable relief which may be appropriate for any threatened or actual breach by either party”

Disclaimer

CI is delivered to Receiving party solely on the basis of the Purposes outlined in the Agreement

Liability for any fraudulent statement or act is not excluded

Disclosing Party however is not responsible for accuracy, adequacy and completeness of the CI

Choice of law

Data protection

law

Contract law

National law

Arbitrationclause

Dispute resolution mechanism

Other provisions

Miscellaneous:Term of Agreement;

Interpretations;

Prior negotiations;

Changes;

Invalid provisions...

“Any notice to be given under this Agreement shall be in writing and shall be delivered by hand, sent by first class post or sent by fax to the address of the other party set out in this Agreement. Any such notice or other document shall be deemed to have been served: if delivered by hand - at the time of delivery; if sent by post - upon the expiration of 48 hours after posting; and if sent by fax - at 9.00 am on the next business day after the fax was dispatched.”

Signatures

Include the full name and contact details of [Authorized] Signatories

Need an NDA drafted or reviewed?

Legal Artviserwww.legalartviser.com

About the author

Check my blog

Moreabout

services

Ordernow