Whether you are an executive looking to protect confidential information, a tech startup founder looking to preserve an invention before revealing it to potential partners or other investors, or a freelancer eager to preserve your rights to a project before signing a contract, understanding the meaning and purpose of non-disclosure agreements (NDAs) and how they can be applied and enforced can be a complex but important step. While forms of NDAs can vary based on the other party involved, all NDAs have the same primary purpose of keeping confidential information private.

What Is an NDA?

At its most basic, an NDA is a contract between two or more parties, also known as a “confidentiality agreement.” This agreement specifies that one or more of the parties must keep the information shared between them confidential. It outlines the necessary steps to take to protect the information shared and sets out the consequences of a breach of confidentiality.

NDAs can differ in style, depending on the circumstances and parties involved. However, all NDAs have two main components:

1. The Obligation of Confidentiality

This portion of the agreement dictates that the recipient of the protected information will not share it with any other person, including affiliates of the parties. In addition, they will also protect the information from disclosure to other parties.

2. Definition of Confidential Information

This portion of the NDA will set out a list of information that is defined as confidential. This can encompass a wide array of items, including trade secrets, proprietary information, ideas, and other information related to the businesses of both parties.

Why You Should Understand NDAs

Whether it is a simple contract between two individuals or a mutually beneficial partnership between two companies, understanding the importance of NDAs is essential in a variety of situations. NDAs provide a form of protection between the parties that retain their respective rights and obligations. They also provide a safeguard in the event of a dispute, as the NDA can be referred to as evidence in court.

The most important aspect of any NDA is that all of the parties involved understand it and are in agreement with the contents and consequences contained within. Otherwise, the NDA will be rendered invalid. It is important to note that an NDA must be constructed in a legally binding way, as determined by the state in which the contract is being signed. Additionally, it must adhere to the laws of the applicable jurisdiction. This means that it is advisable to consult with an experienced attorney that understands the state laws, especially when those laws vary from state to state.

When working with an experienced attorney in New York, you can be sure that the NDA you are crafting is tailored to the specifics of the state and not some “one size fits all” solution. It is also important to have an experienced attorney, especially one who is knowledgeable about your industry, as the laws and regulations will likely differ significantly between different industries.

At the same time, there are certain concerns that need to be addressed even before an attorney’s services become necessary. For starters, the parties participating in an NDA should make sure that the duration of the contract is in line with their goals. Generally, when entering into an NDA, it is safe to assume a 3 to 5 year period.

The restrictions of the NDA should also be discussed and agreed upon before the agreement is drafted. This includes whether a “non-competitive clause” should be included in the NDA. A non-competitive clause dictates that the recipient of the confidential information should not engage in similar activities of a competitive business.

In accordance with their legal obligations, participants of an NDA must also be certain that their obligations under the contract are not illegal. This means that the terms of the NDA should not conflict with local or federal laws. If in doubt, it is always advisable to seek legal counsel.

Taking the time to understand and properly craft an NDA can make a huge difference in protecting confidential information. To make sure the NDA is ideal for your specific situation, you need to discuss key points with the other parties involved. It is also recommended to seek the advice of an experienced attorney that understands the laws of the applicable jurisdiction, especially those that may vary from state to state.


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