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Digisign confidentiality agreement template

hi friends this video is about non-disclosure agreement and we'll be discussing tips and tricks to review non-disclosure agreement in this video so before we go into the tips and tricks I think it is better to understand first what is a non-disclosure agreement so non-disclosure agreement is also called as confidentiality agreement confidential disclosure agreement proprietary information agreement and secrecy agreement non-disclosure agreement is a kind of a contract through which the parties agree not to disclose information covered by it a non-disclosure agreement creates a confidential relationship between the parties to protect any type of confidential information put this into an example we can say that suppose you and me we are entering into a business relationship and we are going to exchange information which is confidential which cannot be revealed to third parties and to make sure that both the parties had held to the confidentiality terms non-disclosure agreement is entered into now non-disclosure agreement can be of two types it may be unilateral or one-way or it may be bilateral or mutual non-disclosure agreement often called under unilateral or one-way non-disclosure agreement one party discloses the information to other party and the disclosing party's information is kept confidential and other party does not or the recipient of the confidential information does not have any right of confidentiality whereas bilateral or mutual non-disclosure agreement applies to both the parties equally so I would suggest whenever you are reviewing any non-disclosure agreement make sure that it is mutual so it will help in case of any business transaction suppose you are dealing with a client or a vendor wherein they just say that they are going to disclose information and there's nothing we can disclose but in the business transaction it often happens that other party also lands up in disclosing some sort of confidential information and in that way you will not get protected so we'll go to next step that is to determine whether a non-disclosure agreement is necessary it often happens that parties end up entering into a non-disclosure agreement where and it is not needed so the situations where it is not needed it is not required at all you need not to waste your time or waste-to-energy because when people or parties enter into an agreement it takes a lot of time in reviving it other party might oppose some terms and conditions so best thing is to determine whether a non-disclosure agreement is really required and if you feel that yes it's required then you can go to the next step where and we will discuss things which you can consider in reviewing a non-disclosure agreement whenever you get to review a nondisclosure agreement it is very important you have a look at name of the parties address of the parties and make sure that names are correct address is registered address of the entity and the opposite party has a proper name in the agreement and also try to get some background of the company which is there in the non-disclosure agreement so it will help you to understand the business of the company and also the existence of the company and also you can check if the company is involved in any sort of litigations there are few companies which enter into agreements and then they don't abide by the contracts they have a lot of litigation and there are a lot of companies which have a lot of litigations pertinent to confidentiality or put in it to IP or any dispute some companies are known for litigation so just to get a background and make sure that you don't fall into any of these companies and number two would be effective date just make sure that contact has the effective date from which the information will be covered if there is no effective date it is going to create an ambiguity and it might lead to a lot of confusion in the future so always make sure that there is an effective date and just mentioning a date would not be enough you can add say state plus in bracket you can mention effective date of the agreement and moving to number three it is very important to define the confidential information which is going to be protected for the non-disclosure agreement make sure that you're including everything which might be disclosed during the transaction in the business transaction and it should be very clear there should not be any confusion or there should not be anything which may lead to any sort of ambiguity in the future any information that flows between the parties can be considered as confidential it might be data know-how prototypes engineering drawings computer software test results tools systems any specifications financial information it might be any business strategy so whatever you intend to disclose or receive during the business transaction you can explain here clearly and try to avoid including oral information in the definition of confidential information because it may lead to conflict or disputes at a later stage because you actually will not be knowing that what was the information which was orally disclosed and how do you protect it because there is no mechanism you can regulate such kind of an information and it is quite fast so I would say that a wide on this kind of terms put a next point which is point number four which talks about protection of confidential information a good NDA will require the other party to maintain confidential information like financial info client lists trade secrets or any sort of material which has been included in the definition of the confidential information it shall be kept confidential and it shall not be disclosed to anyone else and authorized under the non-disclosure agreement and you should also prohibit the other party from using your confidential information and materials for that persons or someone else's financial benefits it should be restricted to the business transaction for which it is disclosed before whenever you are checking the non-disclosure agreement make sure that it has a clause which talks about the protection of confidential information if it is not that then you should include it so we go to the next point that is point number five which talks about standards to handle information an important point that must be covered in any confidentiality agreement is the standard by which the parties will handle the confidential information usually each party will treat others confidential information in the same way that it treats its own however this treatment is acceptable only if the recipient has set standards for handling confidential information such as limiting access to information or other methods of preserving secrecy therefore before signing a confidentiality agreement it's very important to investigate the recipients practices regarding maintaining secrecy of its own information and if those practices are substandard or non-existent the confidentiality agreement should contain specific provisions concerning limiting access to the confidential information which makes it very clear that what would be the standards of handling the confidential information so it is very important that you make sure that the agreement has this sort of language and it ensures that your information is well protected to the next point which is point number six which says no implied license every nondisclosure agreement shall have a clause which says that there is no implied license to the other party which is receiving the part information to disclose the confidential information or use it in a way which is not appropriate or which is not allowed there might be parties who may add language that they should have an implied license to use the confidential information and later part this information might be misused or you may never know for which that information was used and to whom it was disclosed so it is always better to ensure that there is no implied license under the agreement and the next point is about duration of confidentiality this is a very important point wherein you will have to make sure that the agreement has a duration through which parties will maintain confidentiality so usually if we see confidentiality agreement should be for a period of three years or maximum five years if you go for one year I think that maybe two less and a decent duration would be three years and five years and the reason for this is that if the information say is there which is confidential and the contract duration is just one year that information might still be relevant if it is disclosed but if it is say for five years then even if the information is disclosed after five years without authorization or anything wrong happens with your confidential information but by then this information will not be relevant so I would suggest always try to make confidential agreement for a period of three years or filings and they can be another thing you can do is that you can mention in the agreement that the duration for confidentiality agreement or the duration for confidentiality shall start from the day of disclosure of the information suppose there is a three year contract and in the second year you disclose some sort of information to your client or vendor or anybody then from that day three years period should start that's an ideal way of doing it and moving to the next point that is return and destruction of confidential information make sure that there is a clause which talks about the return of the confidential information or destruction of the confidential information once the confidentiality duration or period is over so opposite party to whom a confidential information is disclosed they should return the information or they should delete the information from their systems so that your confidentiality keeps going on and next point is point number nine that is remedies for the preach make sure that the agreement has some sort of remedy in matters related to to any breach of contract so usually in sort of non-disclosure agreements you can ensure that or make sure that there is a damages clause or injunction you can bring against the other party if there is any confidentiality breach so this is a very important aspect which will help you if there is any breach of confidentiality to more or in the future and we go to next point that is point number ten governing law and jurisdiction make sure the the governing law and jurisdiction are within your reach and if you are say a client and we are taking services from a vendor try to make sure that you are keeping the home jurisdiction or governing law your home law country suppose if we are in India you try to make it as India and jurisdiction you can keep suppose you have an office in panel we can keep it Bangalore and you can also do another thing you can say you're a vendor or client is situated in say Singapore then you have another option that you can keep the jurisdiction in both places like Bangalore and Singapore if there is any dispute so from your side or from the client side or from the opposite party you can initiate the legal proceedings from your hometown from the cut from the place where your office is situated so it will be easy for you very cost-effective and you can do it very fast move to the next hand the last point that is termination and notice period so make sure that there's a termination clause where and you get a right to terminate the agreement and it has a good notice period so we can say a normal notice period should be 30 days as I said that suppose the contract is for three years and then after one year you disc local you just terminate the agreement that doesn't mean the information you had say received there is no obligation on you you might think that there is no application but opposite party might bring a legal action against you or the best way is to as we discussed earlier that from the day of disclosure of the information we can say that the period should start to maintain the confidentiality till the period of three years or five years whatever is discussed between the parties parents will move to the next part which is exclusions to confidentiality so not every sort of information can be considered confidential or it can be considered as something which other party has to keep as a secret so there are certain exclusions which you might have to consider or which you may include in your non-disclosure agreement or just make sure that these things are there so first point is about the information publicly known or in the public domain prior to the time of disclosure so in the agreement make sure that you have this language which says that any information which was already known to the public or which is already there in the public domain available easily to anybody such information will not be considered as confidential information and the next point is information publicly known and made generally available after disclosure through no action or inaction of recipient so this is another important exclusion suppose so if we have a client with whom we have entered into a non-disclosure agreement and somehow the information which was confidential it was disclosed to us because of any mistake from client that information gets disclosed publicly without our mistake so at that time the confidence shall to you obligations on the recipient will not be there those those obligations will get deleted will not be considered so you can have white or you can say you are not obliged to maintain the secrecy of the information which has been disclosed by the client where or where you you had no rule ro no role at all and moving to third exclusion that is information already in the position of recipient without confidentiality restrictions suppose so we are receiving some information from our client and that information was already with us so that sort of information should we excluded from the confidentiality obligations because it may lead to breach of the contract if you don't make sure that there is some sort of exclusion in the agreement so it is better to have this kind of language in the agreement which will save you at certain times if you have the information which you had received it was already with you or you had received it from somebody else and next point is number four information obtained by the receiver from a third party without a breach of confidentiality you should always ensure that any information received by the receiver from a third party without a breach of confidentiality shall not be confidential information next point is point number five which is information independently developed by the recipient so any information which is developed independently by the recipient cannot be considered as confidential information because it is not something which has come from the opposite party and the confidentiality obligations will not be applicable in that situation there is another set of exceptions or exclusions in the confidentiality agreements that is permitted disclosures so this part basically will cover say if I have received some information from my client or from anybody with whom I have entered into a non-disclosure agreement and there is some sort of government investigation or there is a court order at that time I should be free to disclose the confidential information to the investigating agency are to the fault but make sure that there's a language which says that the party which has an obligation to disclose information to such government agency or to code will give a proper notice to the opposite party or whose information is being disclosed so that they have a right to objection and this is something very important suppose you are entering into a non-disclosure agreement and tomorrow you get a notice from the court saying that you need to give a certain information about your client so before you disclose the information make sure that you are sending a legal notice to your client or to the disclosure of the information saying that we have received a letter or notice from the court and we are obliged to disclose the information before the court or the investigation agency if you have any objections you can raise the objections within that period the next important aspect or in element of confidentiality agreement is residual information so this usually is considered as an exception or exclusion in the non-disclosure agreement but this is this is kind of a topic or we can say aspect or element of non-disclosure agreement which is very debated and there are a lot of diverse judgments which courts have given about this so we should consider this very important when removing a nondisclosure agreement so first we will try to understand what basically is a residual information after that we will go and discuss about this residual in solution is basically say Oregon's dis say that residual simply means left overs or remains it is what remains after we are done with something in confidentiality agreements a residual information refers to bits and pieces of information that the recipient party retains through memory long after the project or business deal is complete it's the knowledge and naturally retain information that can't be simply toss out of plain there has been a lot of judgments a lot of debates about residual information whether it should be an exception or exclusion to the confidentiality or it should form as a part of confidential information mostly coats have given judgments in fear of the recipients we're in court said that confidential information will not cover residual information so it is always better to exclude confidential or residual information from the confidentiality definition or meaning or anywhere in the agreement there have been a lot of judgments wherein parties had included residual information as part of the confidential information but Coates denied to enforce such confidentiality agreements because the problem is that if you are making your confidential agreement very wide codes Wilmont and forced it so that's the biggest problem you have to make it very specific you have to make it very restricted whenever courts find that the confidentiality agreement is very broad it includes a lot of things courts will not enforce such agreements take it as an exception to the confidentiality agreement so thank you guys I think we have explained how to review confidentiality agreement in length and I have tried to cover as much as I could thank you