What to Look for in a Non-Disclosure Agreement (NDA) Before Signing)
It is always a good idea to protect the integrity and value of your company when engaging in confidential business3 min read
It is always a good idea to protect the integrity and value of your company when engaging in confidential business. After all, your business is the lifeblood of your entire organization. With that in mind, you may wish to sign a non-disclosure agreement (NDA) with the other parties involved. An NDA can be a very useful tool in ensuring the confidentiality of your company is maintained, but there are several things you need to consider beforehand. This article will explore the top five things to consider when signing a non-disclosure agreement in New York.
A non-disclosure agreement is a document which affords protection for proprietary information exchanged between two parties in a confidential relationship. That is to say that both parties to the contract agree to keep information that is designated confidential (generally known as the “Confidential Information”), from being disclosed to the public or to third parties. Knowing what should be included in the agreement and understanding the law governing the agreement is vital to ensure the highest level of protection of your confidentiality.
Before signing an NDA, it is essential to make sure the agreement reflects the key elements of your business in order to get the most comprehensive level of protection and to fully understand the scope of your obligations and rights. It is important to consult with a qualified attorney with experience in contracts and business law to evaluate the document and make sure it fully meets your needs. Experienced attorneys will also be familiar with local regulations and applicable laws, as well as the risks and benefits associated with any provisions. Here are five key points to consider when evaluating an NDA, including those specifically relevant to employees of New York-based businesses:
1. Definition of “Confidential Information”
When signing an NDA, it’s important to make sure that the document precisely and accurately defines what constitutes “Confidential Information.” The definition should be broad enough to include various types of business information, such as trade secrets, customer lists, software design, research, technical information, and financial records, but also specific enough to exclude irrelevant data. Additionally, make sure that the definition of “Confidential Information” excludes information which either party is already authorized to disclose.
2. Disclosure Limitations and Information Management Protocols
The next important point to consider when signing an NDA is the limitation of disclosure. It is essential to make sure that the NDA includes a clear statement of what the parties must and must not do in order to ensure the confidentiality of the “Confidential Information.” For instance, the agreement should prohibit the parties from making copies, printing, or distributing confidential information in any form, unless granted explicit permission. Manufacturers and retailers should also include access control protocols, such as passwords and encryption, to keep confidential information safe.
3. Time Limitations and Duration of the Agreement
The period of time that an NDA is in force can also vary greatly and is largely at the discretion of the contracting parties. There are some instances, however, in which specific time restrictions apply or in which the requirements of the contracting parties dictate the duration of the NDA. When signing an NDA, it’s important to consider the duration of the agreement in order to ensure the protection of any confidential information disclosed. In particular, many New York courts enforce “evergreen” NDAs, which are agreements that remain in effect indefinitely until terminated by one of the parties.
4. Governing Law and Choice of Forum
It is important to note that each state has its own laws concerning contracts and NDAs. Due to the varied nature of these laws, it is important to consider the governing law and choice of forum when signing an NDA. In particular, New York has a specific set of laws applicable to contracts and NDAs. As such, it is important to choose an attorney experienced in the particular laws of New York to craft any NDA you may enter into.
5. Indemnification Provisions
Finally, many NDAs include indemnification provisions which, in the event of a breach, will protect the party who did not violate the NDA from any damages. For instance, if a party disclosed confidential information in violation of the NDA, the non-breaching party could sue for damages. As such, it is important to consider including indemnification provisions in any NDA you enter into for the greatest level of protection.
Overall, signing an NDA includes weighing a number of potential risks and benefits. With that in mind, it is always wise to have an experienced attorney review the document prior to signing. Experienced attorneys will be aware of the local regulations governing the agreement and the risks and benefits associated with any language contained therein. A properly drafted NDA can be an invaluable means of protecting the confidentiality of your proprietary information and can help ensure the success and value of your business.
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