The ability to enforce rights in confidential information (sometimes referred to as trade secrets) is dependent on showing that your business has maintained the information as confidential. One way by which a person or company can protect confidential information is to have non-disclosure agreements (NDAs) in place with employees, contractors, vendors, suppliers and others who may have access to confidential information.
A non-disclosure agreement (also known as a confidentiality agreement or confidential disclosure agreement) is an agreement between two parties to keep information confidential for a set period of time. An NDA may be mutual (where both parties disclose information and are subject to confidentiality obligations) or unilateral (where only one party discloses information).
A written agreement is essential to define and clarify the protected information and, as well, the respective obligations of the parties in terms of disclosure and use of the information. NDAs arise in numerous business contexts and may be a stand-alone agreement or part of a larger agreement.
A well-drafted NDA should typically:
- clearly identify the information to be treated as confidential (typically without disclosing the information itself)
- identify the use to which the information may be put
- provide special treatment for sensitive information as opposed to information of a less sensitive nature
- identify the persons to whom the information may be disclosed
- set forth the circumstances under which the information must be returned
- set forth general exceptions to what is to be considered confidential information and
- identify the term of the confidentiality obligations (which may be indefinite). In the context of a larger agreement, it is not unusual for confidentiality obligations to survive after termination of the main agreement.
NDAs are an essential part of protecting your confidential information and trade secrets. They are an important tool to demonstrate that the information has not been disclosed to the public and that measures are in place to preserve the confidentiality of the information. Protecting confidential information from intentional or even inadvertent disclosure also protects your ability to obtain a patent based on the confidential information.
Our lawyers have significant expertise and experience negotiating confidentiality agreements in various contexts including product development, business transactional, and in the context of exchanging information during litigation.
For more information on Non-disclosure Agreements, please contact: