NDA and Confidentiality Provisions
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Having an NDA agreement checklist is crucial for drafting these clauses effectively. It helps identify key elements such as the definition of confidential information, the restrictions on use and disclosure, the term, the termination rights, survival of trade secret protections, and more.
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When you’re looking to protect your confidential information, having a well-drafted non-disclosure agreement is essential. An NDA template helps you quickly establish confidentiality terms with your counterparties. These three free NDA examples in Word and PDF cover the critical elements you need. Each non-disclosure agreement template is customizable, easy to use, and crafted by legal experts to ensure you have the protection you need.
Watch these training videos
"Why NDAs Matter in the Real World"
In this video, Laura Frederick discusses when you need a non-disclosure agreement (NDA) and when you don't, why they're so important, how they protect a company’s value, how they relate to data protection and privacy laws, and how to explain their importance to your teams and counterparties.
"Top 5 Provisions to Include in Your NDA"
"Top 5 Provisions to AVOID in Your NDA"
"Trade Secrets, Confidentiality, and Common Misconceptions"
Review tips from Laura's book
Know What Your NDA Says
Make sure you know what your non-disclosure agreement (NDA) says. When you sign an NDA, make sure you take time to understand what your obligations are. If you sign NDAs and file them away thinking you are protected, you may have some surprises. An NDA is a contract that protects your information and permits you to use the counterparty's information in a limited way BUT ONLY if you do what the NDA requires you to do. Do you know what is in your NDAs? Do you know whether you must send a written notice after each meeting confirming the information is confidential? READ MORE
Confidentiality Obligations in NDAs Compared to Main Agreements
An NDA is not a confidentiality provision with some boilerplate tacked on. Yes, they have a lot of overlap, but they are very different contractual relationships. We need to think about them differently. Here are three reasons why. First, the relationship context. Most companies sign NDAs as part of preliminary discussions. There is no deal yet. The confidentiality provisions are part of a much broader ongoing commercial relationship. READ MORE
Overlap of Proprietary, Confidential, and Trade Secret Concepts
Today's contract tip covers the overlap of the terms proprietary, confidential, and trade secret. Proprietary and confidential do not have an accepted legal meaning other than the plain English definitions. Proprietary means something owned. Confidential means something secret. In contrast,"trade secret" is a statutory term. The exact definition depends on which statute applies but typically is defined as information that (1) is not generally known to the public, READ MORE
How to Define Confidential Information
Today's contract tip covers the overlap of the terms proprietary, confidential, and trade secret. Proprietary and confidential do not have an accepted legal meaning other than the plain English definitions. Proprietary means something owned. Confidential means something secret. In contrast,"trade secret" is a statutory term. The exact definition depends on which statute applies but typically is defined as information that (1) is not generally known to the public, (2) has economic value because it is not known, and (3) the owner takes reasonable steps to keep the secret. Looking at how they overlap helps me keep these terms clear. READ MORE
The Requirement to Destroy or Return Information
Most non-disclosure agreements (NDAs) and confidentiality provisions require the receiving party to destroy or return all confidential information upon request or termination. Let’s be honest with each other. How many companies do you estimate destroy or return 100% of it? My estimate? 1%. Wait, maybe that is too generous. It is probably closer to .1% or .01%. So few comply because, as these clauses are often written, it is impossible to do so. We live in a world where most of the confidential information is stored in digital format. Even if we try to delete, there are backups and backups of those backups. READ MORE
Warranties in NDAs
Be careful what warranties you include in your non-disclosure agreement. The most common warranty that I see is the accuracy disclaimer. It says that the discloser does not warrant that the information is accurate or complete and prohibits the recipient from relying on it. This warranty is rarely an issue for anyone. I also see warranties that the discloser has the right to share the information it provides. This language gives the recipient a clear claim for breach of contract if the discloser shares something that it shouldn't have or that infringes a third party’s IP.When the relationship includes complex technology or data exchange, I also may include warranty compliance with applicable laws. READ MORE
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