Drafting a Non-Disclosure Agreement – Non-Disclosure Agreement (NDA)

Non-disclosure agreements (NDAs) are commonly used to protect a company’s confidential information and trade secrets, information that allows the business to maintain a competitive advantage in the marketplace, is owned by the business and used in its business, or is a result of such business.

NDAs can be used in a variety of situations, such as when hiring employees or contractors, when a company is considering a merger or acquisition, or when establishing business relationships with partners.

The purpose of an NDA is to prevent the recipient from disclosing confidential information to third parties and to limit the use of the information for certain purposes. The terms of an NDA may vary depending on the situation and the type of information being protected.

Our company can develop a non-disclosure agreement (NDA) for your company based on your needs. Development is possible in Ukrainian and English. The price of developing such a contract depends on various factors and will be discussed individually with our specialist.

What are the requirements for a non-disclosure agreement (NDA)?

The current legislation considers the NDA as a bilateral transaction, which, in order to protect information, must have both general conditions inherent in all bilateral contracts and specific conditions that relate to the object of protection of this contract – commercial secrets. Hence the non-disclosure agreement (NDA):

• Identification of parties. The agreement must clearly define the parties – persons to whom confidential information is transferred, the status of these persons in relation to each other, and the possibility of their clear identification for the court.
• Definition of what is confidential information. The definition of confidential information should be as specific as possible and include a list of examples of the types of information that are considered confidential and may not be disclosed under such an agreement.
• Scope of Agreement and Exclusions. These provisions explain the purpose of the NDA, the parties involved, and restrictions on the use and disclosure of confidential information, as well as any exceptions to confidentiality obligations, such as information that is already publicly available or developed by an independent company.
• Obligations of the recipient. It details the obligations of the recipient of confidential information, including how that information should be handled, stored and protected.
• Term and Termination. For such agreements, it is necessary to clearly define their actions and the way of their termination by any of the parties.
• Consequences of violation. The consequences of violating an NDA can be significant and include monetary damages, injunctive relief, or even criminal prosecution. It is important for both parties to understand the consequences of breaching the agreement and take the necessary steps to ensure compliance.
• Applicable Law and Jurisdiction. This clause sets out the law that will govern the NDA and the jurisdiction in which any disputes will be resolved.

Depending on the specific situation, other provisions may be included in the NDA, such as an indemnification provision or a provision for the return or destruction of confidential information.

Importantly:

When drafting a nondisclosure agreement, it’s important to work with an experienced attorney who can help ensure that the agreement is legally binding and adequately protects confidential information. It is also important to ensure that the recipient fully understands the terms of the agreement and the consequences of a breach.

What clauses cannot be included in a Non-Disclosure Agreement (NDA)?

In addition, it should be noted that in accordance with the legislation of Ukraine, the following information cannot be classified as confidential information:

• about the state of the environment, the quality of food products and household items;
• about accidents, catastrophes, dangerous natural phenomena and other extraordinary events that have occurred or may occur and threaten the safety of citizens;
• about the state of health of the population, its standard of living, including food, clothing, housing, medical care and social security, as well as about socio-demographic indicators, the state of law and order, education and culture of the population;
• regarding the state of affairs with human and citizen rights and freedoms, as well as the facts of their violations;
• about illegal actions of state authorities, local self-government bodies, their officials and officials.

Other jurisdictions also determine that information that is publicly known on the date the agreement is signed, as well as information that a person is required to disclose by court order, cannot be included in a non-disclosure agreement.

In summary, non-disclosure agreements are an important tool for protecting confidential information in business and litigation. When drafting a non-disclosure agreement, it is important to work with an experienced attorney who can help ensure that the NDA is reasonable and does not impose an undue burden on the recipient, is not overly broad or restrictive to the recipient of the information, and therefore will not be voidable by court order.

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