Understanding the Elements of the Non-Disclosure Agreement in Nebraska
Have you had to sign a secrecy agreement or asked your employees or partners to sign a document that states that they should refrain from sharing some information to third parties like your competition, public or the media? Such documents are created to prevent persons who may come across or have access to private and often sensitive information from sharing that knowledge/ information to the wrong people.
The confidentiality agreement in Nebraska is also called a non-disclosure agreement (NDA), and it represents the sworn secrecy through a legal document created between two parties. The understanding between the two parties must specify the information considered confidential by both parties, and it should be in written form. By signing the document, the two parties agree to keep the information private, and the person who is made aware of the secret (the receiving party) is prohibited from disclosing the information.
While these documents are common between employees and employers, the document could also be drafted between partners in a joint venture, a company, and its private/ independent contractors, or the company and its clients or suppliers, among others.
Besides maintaining the secrecy of information, the NDA provides the details of the potential remedies taken into action if the party receiving the trade secret fails to comply with the terms agreed upon in the document.
How do you create the agreement?
The first step involves obtaining a free Nebraska non-disclosure agreement form online then populating the document with the relevant information. To ensure that you have all the right information before you get started, you should know that the company, employer or any other party that discloses the confidential information, often trade secrets is referred to as the disclosing party while the party that learns or receives the new information is the receiving party.
But that is not all that you need to identify in the non-disclosure form. It should have the following details:
The confidential information, trade secrets, and the private operations must meet the statutory requirements, and they should conform to Nebraska's Trademark Registration Act. And the contract should not interfere with the statutes while operating within the confines of Sections 87-126 to 87-144 of the law.
Definition of the confidential information: in the form, you have to disclose the types of information shelved as well as the category that the information falls into. The definition of the information involves the establishment of the rules of the contract or the applicable consideration/ subject of the contract, without having to divulge the trade secret in black and white.
Exclusions: you have to name what the information that is not regarded confidential. So, if some information closely related to your trade secrets is public knowledge or if the receiving party obtained some related information about the secret before signing the NDA, that information must be indicated under the exclusions. Exclusions also include information received from third parties or information the receiving party developed independently.
Obligation: here, mention the roles of the receiving party as well as the consequences they will face if they fail to abide by the terms of the agreement. Under the obligations, it should be clear that the receiving party will not divulge the information to other employees and if they have to, then the other persons who need the information must also sign NDAs. Also, the obligations section indicates that the receiving party shall not, under any circumstances, publish or copy the details of the NDA, unless under the written directions of the disclosing party.
Time period: the confidential information in the free non-disclosure agreement in Nebraska binds a receiving party, and he or she has to be mum about the information for the duration of the agreement and also for some time after the term of the CA.
Signatures: the disclosing and the receiving parties have to put down their names and dated signatures to create a legally binding and a complete NDA.
Types of NDAs
As mentioned above, different circumstances warrant the creation of NDAs. You will, however, note that there are two main types of this secrecy document.
The Unilateral and the mutual/ bilateral NDAs/ obligations
With the unilateral obligations, there is only one disclosing party, and the receiving party has to keep the information confidential and in the event of a breach of contract the receiving party is held liable.
On the other hand, the bilateral obligations are created when both parties involved have to disclose confidential information and so, both parties have to agree to keep the information confidential as they would their own trade secrets. The parties are liable to each other.
Other types of secrecy documents
Non-competes are the most restrictive types of secrecy documents in that they non-only forbid employees from disclosing trade secrets but also forbid them from working with your competition or even starting their own companies to compete with yours. They also restrict solicitation of customers. You should, however, note that the state will approve the non-competes only if you meet some conditions. Though limited, the restrictions of the non-compete must be:'
Reasonable in that it does not cause any injury to the public. That is: the restriction should not deprive the public access to valuable goods and services
It should not be greater than necessary in a reasonable manner, and it must protect an employer from a legitimate business interest.
Also, its reasonableness should be seen in the sense that the non-compete is not oppressive or unduly harsh on the receiving party.
Some of the acceptable restrictions on non-competes in Nebraska include:
Reasonable time, scope and geographical restrictions: so, a 4 or 5-year restriction is unreasonable and a 2-year restriction in a 25-mile radius reasonable, especially when an employer is unable to establish why the restriction should go beyond the 3-year mark.
Note that the state restricts this information to clients that the employer had contact with physically and the ones they did business with. So, the departing employee will only be forbidden from soliciting customers only if he or she dealt with them in person.
Regarding prospective customers and former customers, the state laws are unclear. Note that you cannot use a non-compete to restrict an employee from working with a competitor or client anywhere in the US.
Determining the reasonableness of the time/ geographic restrictions
You have to consider the:
The degree of the inequality in the bargaining power
Risk of losing customers
The extent of the participation of the employee and employer in securing and retention of the customers
Good faith demonstrated by the employer
Employee's health, education, training, or family needs
Existing employment opportunities in the marker
Extent and nature of the employee's position
General knowledge or the sources used to identify customers
The necessity of an employee having to change their residence
Correspondence of restraint and the need to protect the employer's legitimate interests.
You should keep in mind that the state requires that the employee receives some consideration in exchange for signing the contract for the validity of the document.
Would you like to create an NDA today? Get our free non-disclosure forms available to all residents of Lincoln, Omaha, Kearney, Grand Island, North Platte, Papillion, Sydney, and in any other city in Nebraska.