Non-disclosure agreements are necessary to protect business owners from information compromise. The agreement is designed to protect sensitive and proprietary materials from being exposed publicly by others without authorization. It is a contract of terms and conditions, whereby the signer agrees not to disclose proprietary information about the business, except under the terms defined in the contract.
What is Intellectual Property?
Intellectual property is the term used to identify distinct types of creative works, in which property rights are legally acknowledged. There is a variety of intangible works where owners are granted exclusive rights of protection. For example, there are artistic, literary, musical, and inventions that are protected under intellectual property laws. Other works include, but are not limited to, designs, symbols, phrases, names, or words. Intellectual property protection is provisioned through trademarks, copyrights, patients, and trade secret rights.
A non-disclosure agreement (NDA) also known as a confidentiality agreement is a contract used to protect the integrity of the intellectual property. It is the legal contractual agreement between two or more parties that plan to do business together in which information will exchange between the parties. To protect the intellectual property, the non-disclosure agreement should be signed prior to discussing any ideas, new designs, or proprietary materials, including software. In addition, employees, contractors, consultant, or any other third-party that will have access to the proprietary information should also sign a non-disclosure agreement prior to the exchange of business or works. Upon signing the agreement, employees, contractors, consultants, or any other third-party involved has committed to the terms of the agreement. Failing to keep such information confidential, can result in legal action, and even monetary award to the business owner for damages.
To be effective and binding, a non-disclosure agreement should include the following elements:
Definitions – identify the information that is to remain confidential. Exclusions – identify the information that is excluded from the terms of the agreement such as information or creative works produced prior to or independent of the relationship. Obligations – identify all parties involved and the obligations set forth for all parties. Time frame – define the period in which any limitations shall remain enforced. Law can enforce the terms of the agreement for an extended period, including years. The agreeing party can be held liable if the terms of the agreement are breached within that time or if the agreeing party induces others to expose the proprietary information within that time. Provisions – identify any miscellaneous provisions that are in accordance to the terms. Non-compete disclosure – prohibits all parties from using the disclosed information in competition with the disclosing party.
To ensure the proprietary information is protected, business owners should file for protection under the United States patent, trademark, copyright, or trade secret laws. Each category is given protection as “intellectual property.” Business owners can go to the (uspto.gov) website to view the processes and guidelines for the qualified works. Sample agreements can be located online (ndasforfree.com/getagreements.html).