NDA: do you need such an agreement and how to conclude it correctly so as not to run into problems

2024 Author: Malcolm Clapton | [email protected]. Last modified: 2023-12-17 03:44

You will have to fill out a lot of paperwork to turn it into a working document.

What is NDA

This nondisclosure agreement is from the English non-disclosure agreement. It helps prevent the leakage of meaningful information that should not fall into the wrong hands.

For example, a company is hiring a sales manager. He is given access to the client base, which has been accumulating over the years. An employee can quit tomorrow and take the data to competitors. To prevent this from happening, the NDA is signed.

An agreement can be concluded with a counterparty. Let's say an organization finds a contractor company. She must develop an advertising campaign for a new, so far secret product. The contractor will receive information about the product, but should not distribute it ahead of time. Again, the NDA should motivate the contractor's employees to remain silent.

What information can be protected by NDA

In Russia, confidential information includes several types of information. This can be state or official secrets, personal data, and so on. They are protected by the relevant regulations. As for the NDA, it is usually a trade secret.

By law, you can protect information that is valuable precisely because it is unknown to third parties. For example, an organization plans to launch a unique product on the market. If the technology for its development becomes known, competitors can make a similar product - moreover, simultaneously with the original. This means that the company runs the risk of missing out on profits. Therefore, development technology can definitely be a trade secret.

At the same time, there is a fairly large list of data that cannot be classified. This is, for example, information on the number and composition of personnel, pay system and working conditions. More details can be found in Lifehacker's material on trade secrets. If you try to prohibit the disclosure of this information in the NDA, the document will be easily challenged in court.

The NDA can include an obligation to keep confidential and other information that the parties considered confidential, even if it is not protected by law. But only if the regulations do not prohibit it.

What you need to do before drawing up an NDA

The document will be useless if you do not follow the entire procedure for introducing a trade secret regime in an organization. Any little detail can lead to the fact that the court will not find breaches of confidentiality. Therefore, you first need to create the infrastructure for concluding a non-disclosure agreement.

Determine what information you will protect

Here you need to think carefully about everything in order to get a specific list of data that should not be disclosed. You shouldn't get away with general formulations like "everything that becomes known in the process of work" - the court will not be satisfied with such. You need specifics like this:

• information about the production capabilities of the enterprise;
• data on reserves of raw materials;
• enterprise development plans;
• purchase and sales plans.

Subsequently, the results of reflections should be formalized in the list of information constituting a commercial secret.

Establish how sensitive data is handled

To be prosecuted for violating some rules, these rules must be introduced. You need to determine how secret information will be transferred, where to store it, under what conditions it can be transferred to third parties, and so on. All this must be formalized in an appropriate document, and it must be approved by an order or decree.

for example, the order of the governor of the Yaroslavl region on the approval of the Instruction on the procedure for handling information constituting a trade secret, and the conditions for its storage - with the text of the instruction itself.

Organize registration of persons admitted to trade secrets

Introduce the watchman's log. The employee takes the key, writes his data and time in a special book, signs. Returns the key - does the same. The registration of persons admitted to confidential information works in a similar way. True, you can take and hand over only documents on tangible media. For electronic versions, it is sufficient to indicate the date of access.

Use the label "Trade secret"

It must contain this inscription itself, as well as the details of the owner of the confidential information. For legal entities, this is the full name and location. For individual entrepreneurs - surname, name, patronymic, place of residence.

The stamp must be applied to the material carriers of classified data: documents, disks, and so on.

Make a receipt

In general, everything related to trade secrets can be specified in an employment contract or a GPC agreement. But you can also create an NDA. We'll talk about how to do this a little later. In the meantime, it is important to know that an employee must sign not only a document in which he undertakes to keep corporate secrets. You will also need a receipt that the person is familiar with the regulation on trade secrets and other related documents.

Issue an order for the introduction of a trade secret regime in the company

In it, you legitimize everything that you did before. The order might look something like this:

In order to establish a trade secret in * company name *, I order:

1. To approve the Regulation on the commercial secret * of the company *.
2. To acquaint with the Regulations of all employees * of the company * before * date *.
3. Approve the form for registering employees who have gained access to trade secrets.
4. Approve the form of a non-disclosure agreement for commercial secrets.
5. Accept the Regulations for execution and be guided by them starting from the date of this Order.

Applications:

• Regulations on commercial secrets.
• Trade secret nondisclosure agreement form.
• Registration form for employees who have access to trade secrets.

How to draw up an NDA

A nondisclosure agreement does not have a rigid form. Here's what to consider in it:

• Determine the owner of the sensitive data. The contract is concluded on his behalf.
• Indicate the parties who sign the NDA and determine the procedure for how confidential data is transferred to third parties. For example, an agreement is concluded with a company represented by its CEO. But the information will go to the employees who will work with it. Therefore, one of the obligations may be "to bring to the attention of all persons with access to confidential data, the provisions of this agreement."
• Write down what is meant by disclosure of information. This can be use for personal gain, transfer to third parties, and so on.
• Please note which non-trade secret data is considered confidential under the agreement.
• Indicate that the recipient of the information must make every effort to protect it.
• Determine the methods of transferring confidential information: on tangible media, through a messenger, carrier pigeons.
• Set the NDA expiration date. Even if you stop cooperating, the data will remain confidential during this period.
• Determine the sanctions for breach of non-disclosure agreement. It is better to prescribe a fixed fine than an obligation to compensate for the damage. It will be difficult to prove the latter, for this you need good reasons. For example, after spreading information, a client left you. But "after" does not mean "due". To prove the damage, you need to get from the client an admission that he did so because of the leaked data. And to pay a fixed fine, the very fact of information dissemination is enough.

As a result, the non-disclosure agreement may look like, for example, or.

What to remember

• NDA is a non-disclosure agreement. They can protect data that you want to keep secret from third parties.
• Basically, NDA is focused on preserving trade secrets. But you can protect them and other information that is not prohibited by law to hide.
• In order for a document that obliges to keep a trade secret to be valid, it is necessary to correctly enter the appropriate regime in the company within the framework of the law. Otherwise, any punishment can be easily challenged in court.
• It is better to impose a fixed fine for the disclosure of classified information than compensation for damage.