The Elements of an Enforceable Non-Disclosure Agreement in Alaska
If you run a business that gets its competitive advantage from having a unique technology or an invention known only to you and your engineering or product development team, you need to protect it.
There are no two ways around this and even if you are taking to intellectual property attorneys for rights to the product, process, technique, method, or compilation that places your business and ways on a pedestal; you must identify and implement ways that will ensure that the information you wish to protect isn't leaked to the public or your competitors by a former or current employee, disgruntled or not. What you need to look at is a document that is legally binding, a non-disclosure (NDA) or a confidentiality agreement in Alaska.
A confidentiality agreement (CA) or an NDA refers to a legal instrument that communicates and implements your wish to protect confidential business information and trade secrets. The confidential information must be of value, and it should be shown that by remaining a secret, the information is the only/ main reason why your business could be profitable.
To protect your business interests, your employees (the ones with direct contact or extensive knowledge of the sensitive information) must sign a document indicating that they will maintain the secrecy of the business information and that they will not, under any circumstances, divulge the secret. It is, therefore, clear that an NDA is a legally binding contract.
The person or party that discloses the secret to an employee, investor or even a contractor is legally referred to the disclosing party while the party that swears, through signing, to keep the information safe and confidential is the receiving party.
Creation of a confidential relationship
As soon as the NDA has the signatures of the disclosing and the receiving parties, the document creates a legally binding confidential relationship. It's expected that the receiving party will keep their end of the bargain by maintaining utmost secrecy over the details of the NDA.
Types of NDAs
Unilateral or one-way NDAs - these are the most common types of NDAs especially in employment contracts. The receiving party is expected to maintain secrecy over the information in the NDA, and the disclosing party is the only party that is allowed to divulge the details of the NDA to other employees or investors and independent contractors.
Bilateral or Mutual NDAs - these are the NDAs that are commonly used during mergers or planned joint ventures. Both parties are disclosing parties with either party expected to maintain confidentiality over the information shared by the other party.
The only way you can ensure that the NDA you create is airtight involves checking the contents of the documents to ensure that they are reasonable and that they can hold in court. Note that this is a document that could prevent a former employee from landing a competitive position with your competitor so; you need to ensure that it holds. The good news is that this document is easy to create and you only need to download a free Alaska non-disclosure agreement form online then enter all the necessary details.
Elements of the NDA include:
In this section, you should identify the type or category of confidential information while also noting whether the disclosure is written, marked confidential, or written. A clear definition helps to establish the rules of the contract as well as the subject or the consideration related to the confidential information or trade secrets.
After establishing the information that is to be guarded against competitors and the public, you also need to identify the information that does not fall under the confidential information section of the NDA. Often, exclusions include the information that is available in the public domain, information obtained by the employee/ contractor/ investor before signing the NDA, details obtained through reverse engineering, or the information that was shared by the disclosing party before signing of the NDA and with a written approval provided.
The first role of the receiving party is to keep the details of the NDA under wraps. Under the obligations, it should be indicated that in the event of a breach of contract, the receiving party will be held liable. Note that the obligations also cover the limitations to the use of the information in the NDA as well as the fact that the employee should restrict access to the information even to other employees or contractors unless these parties sign NDAs
This element of your free non-disclosure agreement in Alaska indicates how long the receiving party will be expected to guard the secrecy of the information in the NDA. This also indicates that the receiving party is to keep the information in the NDA secretive until the information is no longer deemed a secret or after the disclosing party requests the receiving party, using a written notice, to return all the copies or materials relating to the NDA. The NDA also has clauses for severability, relationships, waivers, and integration.
If your company's confidential information or trade secrets are too sensitive, you could take things up a notch by requesting the employee to sign a non-compete which forbids a former employee from working with your direct competition or starting a company based on the same concepts as yours for a specific amount of time.
For enforcement, and to protect employees from employers who would wish to enforce laws forbidding employees from working for the direct competition forever and from working anywhere in the US, the non-compete must strike a balance between giving the employee the right to work in the field they have been trained in and protecting from an unfair competitive advantage the legitimate business interests of the employer. Alaskan courts tend to disfavor the non-competes because they restrain the trading while placing hardships on employers.
For the courts to approve a non-compete, they have to consider the following factors:
Is the non-compete reasonable in terms of its duration and geographical scope?
Was the employee the sole contact person with a specific client, especially when dealing with solicitation cases?
Did the employee have access to trade secrets/ confidential information?
Is the non-compete against an unfair or ordinary competition?
Will the non-compete stifle the employee's inherent skills and experiences?
Do the benefits to the employer outweigh then detriments faced by the employee?
Will the restriction bar an employee from their sole means of support?
Were the employee's talents developed after training and during the time they worked with the employer?
Is the forbidden employment incidental to the employee's main employment?
Taking all these factors into account, the courts will be able to determine whether or not the non-compete is enforceable.
Do you have a company that deals with sensitive information in Anchorage, Wasilla, Ketchikan, Juneau, Fairbanks, Homer, Seward, Kenai, Barrow, Sitka or any other city in Alaska? Get our free non-disclosure forms to get started today.