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Home Common Sense What Should Be Included While Drafting A Confidentiality Agreement?

What Should Be Included While Drafting A Confidentiality Agreement?

by Celia
What Should Be Included While Drafting A Confidentiality Agreement?

Confidentiality agreements, also known as non-disclosure agreements (NDAs), are essential legal documents that protect sensitive information shared between parties during business transactions, employment relationships, or collaborations. These agreements are designed to ensure that confidential information is not disclosed to unauthorized parties. Drafting an effective confidentiality agreement requires careful consideration of various factors to ensure it is comprehensive, enforceable, and clear. This article will explore the key components that should be included in a confidentiality agreement, along with best practices for drafting such an agreement.

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1. Parties to the Agreement

Identifying the Disclosing Party

The first element in any confidentiality agreement is clearly identifying the parties involved. The agreement should specify the disclosing party (the one providing confidential information) and the receiving party (the one receiving the information). In some cases, the agreement may involve multiple disclosing and receiving parties. Each party must be clearly defined by name and role in the agreement.

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The disclosing party’s details should be described precisely, including the nature of their business or position, to clarify their authority to share confidential information. If the disclosing party is a company, the corporate structure and relevant representatives should be identified.

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Identifying the Receiving Party

The receiving party, whether an individual or a company, must also be clearly defined. If the receiving party is a company, the agreement should specify who within the company is authorized to receive the confidential information. Additionally, the agreement may require the receiving party to disclose certain details, such as relevant employee roles or departments that will have access to the information.

2. Definition of Confidential Information

What Constitutes Confidential Information?

A well-drafted confidentiality agreement should clearly define what constitutes “confidential information” to avoid any ambiguity. Confidential information could encompass a wide range of materials, including:

  • Proprietary Information: Trade secrets, business processes, and inventions.
  • Financial Information: Revenue, profits, expenses, and other financial data.
  • Customer and Supplier Information: Lists, contracts, and contact details.
  • Marketing and Sales Information: Strategies, market analysis, and sales data.
  • Intellectual Property: Patent applications, designs, and copyrighted materials.

The definition should be broad enough to cover all necessary information but specific enough to exclude non-sensitive data. Furthermore, the agreement should specify how confidential information is to be identified or marked (for example, labeling documents as “confidential”).

Exclusions from Confidential Information

It is equally important to outline what does not constitute confidential information. Common exclusions may include:

  • Public Information: Information that is already publicly available or becomes public through no fault of the receiving party.
  • Pre-existing Information: Information that the receiving party already knew before entering into the agreement.
  • Independently Developed Information: Information developed by the receiving party without the use of the disclosing party’s confidential information.
  • Information Shared by Third Parties: Information disclosed to the receiving party by third parties who are not bound by confidentiality obligations.

This section should be detailed to ensure clarity about what can and cannot be shared or used.

3. Obligations of the Receiving Party

Non-Disclosure

The primary obligation of the receiving party in a confidentiality agreement is to not disclose the confidential information to any third party without the disclosing party’s consent. This provision should be clear and unambiguous, outlining that the information must remain confidential and secure.

The agreement should also include any requirements regarding how the confidential information should be protected, such as:

  • Storing documents in secure locations (physical or electronic).
  • Restricting access to confidential information to only those individuals who need to know.
  • Using appropriate encryption or password protections for electronic files.

Non-Use of Confidential Information

In addition to non-disclosure, the receiving party should be prohibited from using the confidential information for any purpose other than what is agreed upon in the confidentiality agreement. This is a key safeguard that prevents the receiving party from benefiting from the information for competitive or unauthorized purposes.

The agreement should clearly specify that the receiving party is prohibited from:

  • Using the information for personal gain.
  • Using it to develop products or services that compete with the disclosing party’s business.
  • Disclosing the information to anyone who does not have a need to know, even within their own organization.

c. Return or Destruction of Information

At the end of the agreement term or upon the request of the disclosing party, the receiving party must agree to return or destroy the confidential information. This clause ensures that the information is not retained or misused after the relationship ends.

4. Duration of Confidentiality Obligations

Term of the Agreement

The confidentiality agreement should clearly state the period for which the obligations of confidentiality apply. This duration may vary depending on the nature of the relationship, but it typically ranges from a few years to indefinitely for particularly sensitive information.

A key consideration is the life span of the confidential information itself. For example, trade secrets may remain confidential indefinitely, while certain business strategies may only remain valuable for a limited time.

Survival of Obligations

The agreement should specify whether the confidentiality obligations survive the termination or expiration of the agreement. In most cases, these obligations will extend beyond the termination of the relationship, particularly if the information remains sensitive.

5. Permitted Disclosures and Exceptions

Disclosure to Authorized Parties

While the confidentiality agreement prohibits unauthorized disclosures, it often allows the receiving party to disclose the confidential information to specific individuals or entities, such as employees, agents, or legal advisors, who need access to the information to fulfill their roles.

The agreement should require that these individuals are also bound by confidentiality obligations before any disclosure can occur. This ensures that the protection of the information is maintained throughout the business relationship.

Disclosures Required by Law

In certain situations, the receiving party may be required to disclose confidential information due to legal or regulatory obligations. The confidentiality agreement should include a provision that allows for disclosures when required by law, such as by court order or government inquiry, but it should also require the receiving party to promptly notify the disclosing party of such a request so that they may seek protective measures if necessary.

6. Remedies for Breach of Confidentiality Agreement

Injunctive Relief

In the event of a breach, the disclosing party should have the right to seek injunctive relief, which is a court order requiring the receiving party to stop the disclosure or misuse of confidential information. This is particularly important because monetary damages may not always be sufficient to compensate for the harm caused by a breach of confidentiality.

Damages for Breach

In addition to injunctive relief, the agreement should specify the remedies for financial damages resulting from a breach. This may include direct damages, such as loss of profits, or consequential damages, such as reputational harm. The agreement may also specify liquidated damages, which provide a predetermined amount of compensation for a breach.

Indemnification

The confidentiality agreement may require the receiving party to indemnify the disclosing party for any losses, damages, or legal costs resulting from the unauthorized disclosure or misuse of confidential information.

7. Governing Law and Jurisdiction

Choice of Law

The agreement should specify which jurisdiction’s laws will govern any disputes arising from the agreement. This is particularly important for international transactions where the parties may be subject to different legal systems.

Dispute Resolution

The agreement should also include provisions for resolving disputes, which may include mediation, arbitration, or litigation. The dispute resolution process should be clearly outlined, including any deadlines or procedures for initiating a claim.

8. Miscellaneous Provisions

Entire Agreement

The confidentiality agreement should state that it constitutes the entire understanding between the parties regarding confidentiality and supersedes any prior agreements or understandings on the same subject matter.

Amendments

Any amendments or modifications to the agreement should be made in writing and signed by both parties. This ensures that any changes to the original terms are formally agreed upon.

Severability

If any provision of the confidentiality agreement is found to be invalid or unenforceable, the remaining provisions should remain in full force and effect. This “severability” clause ensures that the agreement remains intact even if part of it is challenged.

Conclusion

A well-drafted confidentiality agreement is essential for protecting sensitive information in business relationships. By clearly outlining the obligations of the parties, defining what constitutes confidential information, and specifying remedies for breach, a confidentiality agreement helps to prevent unauthorized disclosures and safeguard the interests of all involved parties. It is critical to tailor the agreement to the specific needs of the situation and seek professional legal advice to ensure that it is both comprehensive and enforceable.

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