| A non-disclosure agreement is made between | | | | effect if another portion of the agreement is |
| two parties when they agree that one or both | | | | found for some reason to be unenforceable. |
| parties will not reveal specific information that is | | | | There may be a provision dealing with whether or |
| considered to be confidential by the disclosing | | | | not the non-disclosure agreement will be binding to |
| party. Non-disclosure and confidentiality | | | | heirs or other assigns. |
| agreements are commonly used to enforce | | | | There is often a provision that calls for the return |
| obligations of confidentiality on a party that is | | | | of any confidential materials that have been used |
| receiving information or material from a disclosing | | | | by the recipient (signing party). A provision is |
| party that the second party considers to be | | | | often included that states that the disclosing party |
| secret or classified. | | | | retains the right to have an injunction issued by a |
| There are some very important issues to | | | | court if the non-disclosure agreement is ever |
| consider when drafting a non-disclosure | | | | breached. |
| agreement. To begin with, it is necessary to | | | | Provisions that specify the ownership of all the |
| clearly and specifically identify and describe the | | | | confidential information may be required. It is also |
| information that is to be considered confidential. If | | | | often detailed in a provision how and when |
| there are any limitations on which information is to | | | | disputes will be arbitrated as well as the controlling |
| fall into this category then they need to be | | | | law. |
| specified. | | | | In order to execute a non-disclosure agreement, |
| For example, there may be information that is | | | | it is necessary that the information that is to be |
| already known to the party that will be signing the | | | | protected will protect a justifiable business |
| agreement. Information that is made public must | | | | concern. For example, information that is |
| also be addressed. It must be clarified which party | | | | commonly known through a specific industry will |
| is disclosing the information and which party is | | | | generally not be covered by a non-disclosure |
| subject to the non-disclosure agreement. | | | | agreement, or else that portion of the agreement |
| The time period during which this information is to | | | | may be found to be unenforceable. |
| remain confidential is also an important concern to | | | | For information to be protected from disclosure, it |
| be addressed in the non-disclosure agreement. | | | | needs to truly be secret, it must have actual |
| Does the confidential information actually qualify | | | | commercial value, and it must pose a threat to a |
| as a "trade secret" to be kept private indefinitely, | | | | company's operations if the information is |
| or will there be a time-based limitation? There | | | | disclosed. |
| may also be specific purposes for which the | | | | For these reasons, you may want to consult with |
| information will need to be disclosed, and then | | | | an attorney before drafting or signing a |
| these situations need to be specified as well. | | | | non-disclosure agreement. On the other hand, this |
| There are some specific provisions that may be | | | | is one of many types of common contracts that |
| frequently found in a non-disclosure agreement. | | | | can easily be purchased in downloadable form on |
| There may be a provision that allows the | | | | the internet. |
| remaining portion of the agreement to remain in | | | | |