A non-disclosure agreement (NDA) is a legal contract that outlines confidential materials, information and knowledge between two or more parties. The agreeing parties consent not to disclose information covered by the agreement. This is to protect confidential and proprietary information or trade secrets; as such NDA creates a confidential relationship between the parties. They can share information with one another, and the information will be protected or restrict access by third parties because of the NDA. Nonpublic business information will be protected.
In a corporate setting, an employee can be made to sign an NDA or NDA-liked agreement. It will likely contain employment agreement restricting dissemination of company-owned confidential information.
An NDA is also known as a confidentiality agreement (CA), a proprietary information agreement (PIA) a confidential disclosure agreement (CDA) or a secrecy agreement.
Types of NDA’s:
- Unilateral NDA. Refers to a one way agreement where disclosure of certain information of a party to another should remain secret because of some pertaining reasons.
- Bilateral NDA. Both parties will be supplying information that is intended to be keep as a secret. This mutual agreement between both parties is commonly done when considering some joint venture or merger.
Contents of an NDA
An NDA is capable of protecting any kinds of information that is not known generally. NDA can also contain some part or article that can protect the receiving person if they obtained the information through other sources. They will not be obligated to keep the information a secret.
Common issues addressed in an NDA may include:
- Outline the parties to the agreement.
- The definition of what is confidential.
- The period of disclosure and the specific information that should not be disclosed during the disclosure period. After the date indicated, the information is no longer deemed confidential.
- The exclusions from what must be kept confidential. Restrictions on the disclosure or use of the confidential data will be invalid if:
- the recipient had prior knowledge of the materials
- the recipient gained subsequent knowledge of the materials from another source
- the materials are generally available to the public
- the materials are subject to a subpoena
- Provisions restricting the transfer of data in violation of national security
- The term (in years) of the confidentiality,
- The term (in years) the agreement is binding
- Permission to obtain ex-parte injunctive relief
- The obligations of the recipient regarding the confidential information, typically including some version of obligations:
- To use the information only for enumerated purposes
- To disclose it only to persons with a need to know the information for those purposes
- To use appropriate efforts (not less than reasonable efforts) to keep the information secure. Reasonable efforts is often defined as a standard of care relating to confidential information that is no less rigorous than that which the recipient uses to keep its own similar information secure
- To ensure that anyone to whom the information is disclosed further abides by obligations restricting use, restricting disclosure, and ensuring security at least as protective as the agreement
- Types of permissible disclosure – such as those required by law or court order
- The law and jurisdiction governing the parties. The parties may choose exclusive jurisdiction of a court of a country
Source: 1-2-Law: www.12law.com