Confidentiality Agreements or Non-Disclosure Agreements (NDAs) are agreements between two or more parties that identifies confidential materials or knowledge the parties wish to share with one another for certain purposes, but wish to restrict access and maintain confidences. An NDA creates a confidential relationship between the parties to protect any type of confidential and proprietary information or a trade secret. As such, an NDA protects non-public information. For example, NDAs may be used to maintain confidential material disclosed by an inventor, to protect sensitive government data on government contracts to independent providers (e.g., primes and subcontractors), and to protect trade secret information learned by an employee during the course and scope of work.
Many large businesses or government entities will not use an NDA prepared by an outside business. Instead, large businesses and government entities will insist on using their own NDA. In general, use of the large business’ or government entity’s NDA is fine; however, careful attention is necessary to ensure that the parties understand the terms of the NDA, as well as the consequences if there is a breach.
The most significant key points to protect the disclosing party include:
The following protections for the receiving party are reasonable, and, when applicable, such clauses release the receiving party from certain or even all of the requirements of the NDA as set forth below:
NDAs are a significant part of an overall intellectual property protection strategy. However, in order to ensure the best possible protection, NDAs should be used in a strategic approach to disclosure that includes other measures and we recommend further consultation with a skilled intellectual property attorney.