Free Non-Disclosure Agreement

Sample Non-Disclosure Agreement

NON-DISCLOSURE AGREEMENT

THIS NON-DISCLOSURE AGREEMENT (the "Agreement") dated this ______ day of _________, ______

BETWEEN:

____________________ of ________________________________________________________________________________

(the "Employer")

OF THE FIRST PART

- AND -


____________________ of ________________________________________________________________________________

(the "Employee")

OF THE SECOND PART

BACKGROUND:

  1. The Employee is currently or may be employed as an employee with the Employer for the position of: ____________________. In addition to this responsibility or position (the "Employment"), this Agreement also covers any position or responsibility now or later held with the Employer.
  2. The Employee will receive from the Employer, or develop on the behalf of the Employer, Confidential Information as a result of the Employment (the 'Permitted Purpose').

IN CONSIDERATION OF and as a condition of the Employer employing the Employee and the Employer providing the Confidential Information to the Employee in addition to other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, the parties to this Agreement agree as follows:

    Confidential Information

  1. All written and oral information and materials disclosed or provided by the Employer to the Employee under this Agreement constitute Confidential Information regardless of whether such information was provided before or after the date of this Agreement or how it was provided to the Employee.
  2. The Employee acknowledges that in any position the Employee may hold, in and as a result of the Employee's Employment by the Employer, the Employee will, or may, be making use of, acquiring or adding to information about certain matters and things which are confidential to the Employer and which information is the exclusive property of the Employer.
  3. 'Confidential Information' means all data and information relating to the business and management of the Employer, including but not limited to, the following:
    1. Confidential Information will also include any information that has been disclosed by a third party to the Employer and is protected by a non-disclosure agreement entered into between the third party and the Employer.
  4. Confidential Information will not include the following information:
    1. Information that is generally known in the industry of the Employer;
    2. Information that is now or subsequently becomes generally available to the public through no wrongful act of the Employee;
    3. Information rightly in the possession of the Employee prior to receiving the Confidential Information from the Employer;
    4. Information that is independently created by the Employee without direct or indirect use of the Confidential Information; or
    5. Information that the Employee rightfully obtains from a third party who has the right to transfer or disclose it.
  5. Confidential Obligations

  6. Except as otherwise provided in this Agreement, the Employee must keep the Confidential Information confidential.
  7. Except as otherwise provided in this Agreement, the Confidential Information will remain the exclusive property of the Employer and will only be used by the Employee for the Permitted Purpose. The Employee will not use the Confidential Information for any purpose that might be directly or indirectly detrimental to the Employer or any associated affiliates or subsidiaries.
  8. The obligations to ensure and protect the confidentiality of the Confidential Information imposed on the Employee in this Agreement and any obligations to provide notice under this Agreement will survive the expiration or termination, as the case may be, of this Agreement and will be continuous from the date of this Agreement until _______ ___________, _______, except in the case of any Confidential Information which is a trade secret in which case those obligations will last indefinitely.
  9. The Employee may disclose any of the Confidential Information:
    1. to such employees, agents, representatives and advisors of the Employee that have a need to know for the Permitted Purpose provided that:
      1. the Employee has informed such personnel of the confidential nature of the Confidential Information;
      2. such personnel agree to be legally bound to the same burdens of confidentiality and non-use as the Employee;
      3. the Employee agrees to take all necessary steps to ensure that the terms of this Agreement are not violated by such personnel; and
      4. the Employee agrees to be responsible for and indemnify the Employer for any breach of this Agreement by their personnel.
    2. to a third party where the Employer has consented in writing to such disclosure; and
    3. to the extent required by law or by the request or requirement of any judicial, legislative, administrative or other governmental body.
  10. Avoiding Conflict of Opportunities

  11. It is understood and agreed that any business opportunity relating to or similar to the Employer's current or anticipated business opportunities coming to the attention of the Employee during the Employee's Employment is an opportunity belonging to the Employer. Accordingly, the Employee will advise the Employer of the opportunity and cannot pursue the opportunity, directly or indirectly, without the written consent of the Employer.
  12. Without the written consent of the Employer, the Employee further agrees not to:
    1. solely or jointly with others undertake or join any planning for or organization of any business activity competitive with the current or anticipated business activities of the Employer; and
    2. directly or indirectly, engage or participate in any other business activities which the Employer, in their reasonable discretion, determines to be in conflict with the best interests of the Employer.
  13. Non-Solicitation

  14. Any attempt on the part of the Employee to induce others to leave the Employer's employ, or any effort by the Employee to interfere with the Employer's relationship with their other employees and contractors would be harmful and damaging to the Employer. The Employee agrees that from the date of this Agreement until _________ _______, ________, the Employee will not in any way, directly or indirectly:
    1. induce or attempt to induce any employee or contractor of the Employer to quit their employment or retainer with the Employer;
    2. otherwise interfere with or disrupt the Employer's relationship with their employees and contractors;
    3. discuss employment opportunities or provide information about competitive employment to any of the Employer's employees or contractors; or
    4. solicit, entice, or hire away any employee or contractor of the Employer.

    This obligation will be limited in scope to those persons that were employees or contractors of the Employer at the same time that the Employee was employed by the Employer.

  15. Non-Competition

  16. Other than through employment with a bona-fide independent party, or with the express written consent of the Employer, which will not be unreasonably withheld, the Employee will not, from the date of this Agreement until _______ ______, _____________, be directly or indirectly involved with a business which is in direct competition with the particular business line of the Employer that the Employee was working during any time in the last year of Employment with the Employer.
  17. From the date of this Agreement until ___ ________, ________, the Employee will not divert or attempt to divert from the Employer any business the Employer had enjoyed, solicited, or attempted to solicit, from their customers, prior to termination or expiration, as the case may be, of the Employment.
  18. Ownership and Title

  19. The Employee acknowledges and agrees that all rights, title and interest in any Confidential Information will remain the exclusive property of the Employer. Accordingly, the Employee specifically agrees and acknowledges that the Employee will have no interest in the Confidential Information, including, without limitation, no interest in know-how, copyright, trademarks or trade names, notwithstanding the fact that the Employee may have created or contributed to the creation of that Confidential Information.
  20. The Employee does hereby waive any moral rights that the Employee may have with respect to the Confidential Information.
  21. The Confidential Information will not include anything developed or produced by the Employee during the term of this Agreement, including but not limited to intellectual property, process, design, development, creation, research, invention, know-how, trade name, trademarks or copyright that:
    1. was developed without the use of any equipment, supplies, facility or Confidential Information of the Employer;
    2. was developed entirely on the Employee's own time;
    3. does not relate to the actual business or reasonably anticipated business of the Employer;
    4. does not relate to the actual or demonstrably anticipated processes, research or development of the Employer; and
    5. does not result from any work performed by the Employee for the Employer.
  22. The Employee agrees to immediately disclose to the Employer all Confidential Information developed in whole or in part by the Employee during the term of the Employment and to assign to the Employer any right, title or interest the Employee may have in the Confidential Information. The Employee agrees to execute any instruments and to do all other things reasonably requested by the Employer (both during and after the term of the Employment) in order to vest more fully in the Employer all ownership rights in those items transferred by the Employee to the Employer.
  23. Remedies

  24. The Employee agrees and acknowledges that the Confidential Information is of a proprietary and confidential nature and that any failure to maintain the confidentiality of the Confidential Information in breach of this Agreement cannot be reasonably or adequately compensated for in money damages and would cause irreparable injury to the Employer. Accordingly, the Employee agrees that the Employer is entitled to, in addition to all other rights and remedies available to them at law or in equity, an injunction restraining the Employee and any agents of the Employee, from directly or indirectly committing or engaging in any act restricted by this Agreement in relation to the Confidential Information.
  25. Return of Confidential Information

  26. The Employee agrees that, upon request of the Employer, or in the event that the Employee ceases to require use of the Confidential Information, or upon expiration or termination of this Agreement, or the expiration or termination of the Employment, the Employee will turn over to the Employer all documents, disks or other computer media, or other material in the possession or control of the Employee that:
    1. may contain or be derived from ideas, concepts, creations, or trade secrets and other proprietary and Confidential Information as defined in this Agreement; or
    2. is connected with or derived from the Employee's services to the Employer.
  27. Notices

  28. In the event that the Employee is required in a civil, criminal or regulatory proceeding to disclose any part of the Confidential Information, the Employee will give to the Employer prompt written notice of such request so the Employer may seek an appropriate remedy or alternatively to waive the Employee's compliance with the provisions of this Agreement in regards to the request.
  29. If the Employee loses or fails to maintain the confidentiality of any of the Confidential Information in breach of this Agreement, the Employee will immediately notify the Employer and take all reasonable steps necessary to retrieve the lost or improperly disclosed Confidential Information.
  30. Any notices or delivery required in this Agreement will be deemed completed when hand-delivered, delivered by agent, or seven (7) days after being placed in the post, postage prepaid, to the parties at the addresses contained in this Agreement or as the parties may later designate in writing.
  31. The addresses for any notice to be delivered to any of the parties to this Agreement are as follows:
    1. ____________________
      ________________________________________________________________________________
    2. ____________________
      ________________________________________________________________________________
  32. Representations

  33. In providing the Confidential Information, the Employer makes no representations, either expressly or impliedly as to its adequacy, sufficiency, completeness, correctness or its lack of defect of any kind, including any patent or trademark infringement that may result from the use of such information.
  34. Termination

  35. This Agreement will automatically terminate on the date that the Employee's Employment with the Employer terminates or expires, as the case may be. Except as otherwise provided in this Agreement, all rights and obligations under this Agreement will terminate at that time.
  36. Assignment

  37. Except where a party has changed its corporate name or merged with another corporation, this Agreement may not be assigned or otherwise transferred by either party in whole or part without the prior written consent of the other party to this Agreement.
  38. Amendments

  39. This Agreement may only be amended or modified by a written instrument executed by both the Employer and the Employee.
  40. Governing Law

  41. This Agreement will be construed in accordance with and governed by the laws of the State of Alabama.
  42. General Provisions

  43. Time is of the essence in this Agreement.
  44. This Agreement may be executed in counterpart.
  45. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
  46. The clauses, paragraphs, and subparagraphs contained in this Agreement are intended to be read and construed independently of each other. If any part of this Agreement is held to be invalid, this invalidity will not affect the operation of any other part of this Agreement.
  47. The Employee is liable for all costs, expenses and expenditures including, and without limitation, the complete legal costs incurred by the Employer in enforcing this Agreement as a result of any default of this Agreement by the Employee.
  48. The Employer and the Employee acknowledge that this Agreement is reasonable, valid and enforceable. However, if a court of competent jurisdiction finds any of the provisions of this Agreement to be too broad to be enforceable, it is the intention of the Employer and the Employee that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable, bearing in mind that it is the intention of the Employee to give the Employer the broadest possible protection to maintain the confidentiality of the Confidential Information.
  49. No failure or delay by the Employer in exercising any power, right or privilege provided in this Agreement will operate as a waiver, nor will any single or partial exercise of such rights, powers or privileges preclude any further exercise of them or the exercise of any other right, power or privilege provided in this Agreement.
  50. This Agreement will inure to the benefit of and be binding upon the respective heirs, executors, administrators, successors and assigns, as the case may be, of the Employer and the Employee.
  51. This Agreement constitutes the entire agreement between the parties and there are no further items or provisions, either oral or otherwise.

IN WITNESS WHEREOF ____________________ and ____________________ have duly affixed their signatures under hand and seal on this _____ day of ______, _______________.____

     

Witness(Sign):________________________________

 

____________________________________

Witness Name: ____________________________

 

____________________________(Employer)


     

Witness(Sign):________________________________

 

_______________________________________

Witness Name: ____________________________

 

____________________________(Employee)



What is a Non-Disclosure Agreement?

A Non-Disclosure Agreement (NDA), also known as a Confidentiality Agreement, is a legally binding contract between parties who agree to keep certain information confidential. It is a commonly used business tool for the purpose of protecting confidential or proprietary information, or trade secrets from being disclosed to third parties who would benefit from the information. NDAs are used by businesses in a variety of situations including with employees, contractors, consultants, partners, distributors, etc., essentially anyone with whom in the course of doing business, you would disclose, or they would otherwise become aware of confidential information, that is subject to protection, and that were it disclosed or misused, would threaten or harm your business. Some information may not need to be held in secrecy after the end of the business relationship, but some information will need secrecy to continue even after the termination of the business relationship. As long as the NDA is deemed reasonable by the court, a party guilty of breaching an NDA might be sued for monetary damages and ordered to pay lost profits, and/or receive a court-ordered injunction notice forcing them to stop further release of the information. In most cases, the plaintiff gets both monetary and injunction relief.

Types of NDAs

An NDA can be unilateral (one-way) or mutual between both/all parties. A unilateral NDA is common with employers and employees, vendors or clients. A mutual NDA is a contract signed by two or more parties expected to protect the trade secrets of the other(s). A mutual NDA is common between businesses or partners for mergers, collaborations, and other joint ventures

Types of Information Included in an NDA

Not all types of business information are subject to protection, and the terms for keeping the information confidential vary based on the type of information. Excluded information includes that which is available in public, information from third parties, or information that the receiving party obtains independently. Information subject to protection in an NDA can be classified as either “ordinary confidential information” or “trade secrets.” Ordinary confidential information covers technical and marketing information, including such things as manufacturing processes, technical procedures, designs, sketches, analyses, source codes, customer lists, marketing strategies and pricing models. The time limitation term for ordinary confidential information is usually 2, 3, or 5 years. Courts typically will not enforce perpetual/indefinite terms for non-trade secret information.

What is a Trade Secret and Why is It Special?

Trade secrets are a special type of confidential information. The simplest explanation of a trade secret is just that, information that should be kept secret for trading purposes because it is essential to commercial viability of the business. The statutes recognize trade secrets as information, device, process, program, compilation, technique, method, formula, recipe, software, which gives the owner of the information a competitive advantage because the information is unknown to others. Examples of trade secrets are the recipe for Coca-Cola and the “11 herbs and spices” used to make Kentucky Fried Chicken. It’s easy to see that were these trade secrets disclosed to others such as the public, media, and competitors, that would negatively impact their businesses. For good reason, non-disclosure terms for a trade secret have no time limits and can last forever, so you should never place a time limit on how long a trade secret should be kept confidential.

Be Specific.

An NDA must be very specific, or it will not be enforced in the Courts. You must identify and include the specific details of the information regarded as confidential. Do not use general phrases because lack of specificity is a loophole that makes it hard to enforce that the information is subject to protection or prove that it has been breached. Also, be very specific in detailing the obligations of the receiving party, including things that they can and cannot do with the information.

More About Terms and Time Limits

It’s important to clearly understand when the period of confidentiality is meant to begin and end. There’s a difference between the time limit based on the Agreement itself, and the time limit based on when the disclosure of the confidential information is made. If a time limit is applied to the Agreement itself, the clock starts ticking from the date of the Agreement, not from when the disclosure is made. Likewise, there is a difference between when the Agreement itself terminates, versus when the period of confidentiality ends. You can also select a specified date in the future for the end date of the confidentiality, providing that it is reasonable.

When to Use Non-Compete/Non-Solicitation Clauses

Non-compete and non-solicitation clauses are common in employment engagements where the employee is forbidden from working for companies in direct competition with, stealing customer/client lists from, or hiring employees away from their former employer, and even starting their own companies, as that would directly compete with their former employer. These restrictions are time and geographically specific. Courts generally frown on Non-compete/Non-Solicitation Clauses that severely limit a person’s ability to find a future job or make a living and will not enforce unlimited/indefinite terms for such.

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