There are numerous circumstances when you may want to share confidential information with another party, and will be necessary to put in place protection for the disclosure of the information. When such situations arise, it can be useful to create a non-disclosure agreement (NDA), which is a legally binding promise between the parties not to disclose the information unless to authorised persons.
When creating a NDA, it is important to include:
- a definition of the parties involved;
- the purpose of the agreement and what information is confidential;
- what is classified as non-confidential information and exceptions; and
- the duration of the agreement and how each party can terminate.
A NDA should include a definition of the parties involved and who is disclosing and receiving the information. If both parties are disclosing and receiving the information then the agreement should be mutual. Whereas if only one party is disclosing and the other receiving, a one-way NDA is required.
Within the NDA, it is important to define the representatives of the recipient who can receive the confidential information. This includes legal professionals and employees of the company who will be involved in fulfilling the purpose.
Background and Purpose
The parties must outline in the NDA the purpose for the disclosure of the confidential information. This is required as it is important to have a clear understanding why the parties are disclosing the information and the aim that the parties are trying to reach.
It is also important to identify which information will be confidential. A disclosing party will want this definition to be as wide as possible including all information shared, whereas a recipient will want it clearly defined to make it clear which information to keep secret.
Non-Confidential Information and Exceptions
This will outline any circumstances that exclude the confidentiality obligation of the receiving party. These include any information that is already public knowledge or confidential information that has been acquired by the recipient from a third party who is not under a confidentiality obligation. It is also important to ensure that the receiving party is able to disclose this confidential information if required by law.
Duration and Termination
Lastly, a NDA must include how either party can terminate the agreement and how long the parties obligations remain in place after the relationship ends. This can be indefinitely or for a fixed term (usually 2-5 years) as most information becomes outdated and therefore worthless after certain time.
The information contained in this article is for information purposes only and is not intended to constitute legal advice. If you require further information our commercial team would be more than happy to assist you. Please contact us at [email protected] or call us on 029 2009 5500 to speak to one of our team.