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The Most Important Elements of a Non-Disclosure Agreement in West Virginia
If yours is a business that thrives on confidentiality, particularly the ability of your employees and partners to keep their mouths shut on the details of your trade secrets, marketing strategies, financial and accounting records, pricing models, inventions, and software, among others, it means that your team should only be made of individuals you can trust. You will probably vet all new hires, possible partners and investors significantly before bringing them on board.
But, despite good rap sheet and a clean background, you still need to do more to enhance the safety of your confidential information. So, you will have a confidential agreement in West Virginia ready in anticipation of new hires or relationships. You need to ensure that before you hold talks around the company’s secrets, everyone who learns about the secret keeps it a secret. And, nothing does this well than confidentiality or a non-disclosure agreement (NDA).
An NDA ensures that the parties you engage with do not use your secrets to your detriment. Note that the Uniform Trade and Secrets Act regards to trade secrets as the information – process, program, compilation, method, technique, formula, or device – that a company derives its competitiveness from.
The information is unknown to the public and competitors hence the company’s actual or potential economic advantage, and also, the information is not easily ascertainable, through legal/ appropriate means by parties that would benefit from the information. A trade secret is also regarded as the information that is subjected to reasonable efforts to ensure that it is kept a secret.
Circumstances that necessitate the use of NDAs
Sharing marketing or financial information with a prospective buying company
Presentation of an invention to a potential investor, distributor, or partner
Showcasing new products or technologies to a licensee or a prospective buyer
When allowing employees access to confidential information or when receiving the services from a company dealing with or having access to sensitive information.
Types of NDAs
Unilateral NDA: this is a contract that binds a receiving party to the disclosing party in that the receiving party signs an NDA and in doing that, they promise not to disclose the secrets they have learned. The receiving party is the only party that needs to protect the information so that they are the liable party in the event of a breach. This NDA is common with employees, investors, as well as potential investors.
Bilateral NDA: this is a contract that is signed by two parties, both with sensitive information that needs protecting. The information is to be protected by both parties and in the event of a breach, both parties will be held liable. Such contracts are common in mergers and joint ventures.
The Key Elements of the NDA
First, you have to download a free West Virginia non-disclosure agreement form online. The NDA form will guide you in the creation of a valid and an enforceable contract. To ensure that you have everything in order, check these elements:
Definition of the information deemed confidential: rather than using a blanket statement that says confidential, you should move a step further by indicating the exact details of the information you are protecting. You need to indicate the details of the trade secret you are protecting or the intellectual property rights you own. Specificity ensures that your contract is free of loopholes. Besides getting rid of loopholes, a clear definition of the confidential information will make sure that the receiving party knows what they need to protect.
Identification of the parties to the NDA: the parties to your non-disclosure comprise the receiving party and the disclosing party. Often, the disclosing party is the company or individual with authorship/ownership rights to the information in the NDA. All parties involved, including personal representatives, must be named in the NDA.
The scope of the receiving party’s obligations: at its core, an NDA gives the receiving party two main roles – non-disclosure of the confidential information without permission and non-use of the information without the express authority of the disclosing party. But, there are a few more obligations.
They include protection of the security of the confidential information, prevention of unauthorized access, as well as the disclosure of information, and safeguarding of the confidentiality of the information by only allowing access to specific third parties on the need to know basis.
Also, the receiving party needs to destroy or return all documents relating to the NDA at the end of the contract’s term. He or she is also required to immediately notify the disclosing party if they lose or disclose the information. While the receiving party is under strict orders not to divulge the trade secrets, they have to when compelled by the court; they should, however, notify the disclosing party of the development.
Exclusions: this is a list of the information that the receiving party is not obligated to protect. It includes information that is already out in public, obtained from third parties, or information obtained from personal knowledge/ legally, or through reverse engineering.
Remedies: in the event of a breach, the responsible party may have to pay money to cover the damage and the court a may also order an injunction relief, stopping the guilty party from disclosing any more information.
Duration: it should be indicated when the NDA expires or when the receiving party no longer needs to protect the confidential information.
As per the requirements of Chapter 47 and Article 22 of the Uniform Trade and Secrets Act in the state, your free non-disclosure agreement in West Virginia must bear the signatures of the disclosing and the receiving parties for enforcement.
The non-compete is a restrictive employment contract that limits an employee’s ability to compete with their former employer after they leave employment. It forbids employees from stealing trade secrets and customer lists as a means of setting up competition with their employer. Though restrictive, the state will only enforce the non-compete if it is reasonable. This means that the contract must strike a balance between the protection of the business’ right to protect its legitimate trade secrets and business interests from any form of unfair competition, and the employee’s ability and right to work in a field they are trained.
Also, for reasonableness, the contract must have specifics of the geographical and time limitations imposed. The size and the type of the company matter too. The other condition for enforcement is a consideration – what is the employee getting for signing the non-compete? Although the state has not ruled for or against initial or continued employment as sufficient consideration, it is an important element. However, the absence of consideration will not make invalidate the contract.
Looking for an NDA in Martinsburg, Beckley, Huntington, Morgantown, Charleston, Wheeling, Parkersburg, or any other city in West Virginia? Get started with our non-disclosure agreement forms available online at no cost.