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Non Disclosure Agreement

Frequently asked questions about Non-Disclosure Agreements

 

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A non-disclosure agreement (NDA) is a contract whereby any particular individual or company, public or private, legally binds another party so as to keep certain information disclosed within the scope of a service or business confidential.

     

 

03. What is a non-disclosure agreement (NDA) for?
16. What are the essential elements of a Non-Disclosure Agreement (NDA)?

45. Who can sign a non-disclosure agreement (NDA)?

46. If a non-disclosure agreement (NDA) has a fake signature, what should I do?

52. If an employee is sacked, should he or she still continue to comply with the non-disclosure agreement (NDA)?
 
 
01. What is a non-disclosure agreement (NDA)?
 
A Non-Disclosure Agreement (NDA) is a legal contract that protects the rights of a particular company in situations where some confidential information relating to transactions, products, services or even processes have to be disclosed in the normal course of the business. This is the concept of non-disclosure contract.
 
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02. When should you sign a non-disclosure agreement (NDA)?
 
A non-disclosure agreement can take place, for instance, when presenting a business idea to an investor or lender, outsourcing services, in the manufacturing process, treating personal data or several other similar situations, being the non-disclosure contract signed together with any other business, labour or service contract signed between entities and/or individuals.
 
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03. What is a non-disclosure agreement for (NDA)?
 
Non-disclosure agreements are for the purpose of preventing individuals or entities from using the information disclosed to them for their own benefit or that of a third party.
 
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04. Who can sign a non-disclosure agreement (NDA)?
 
Any public or private corporate entity as well as any individual can sign a non-disclosure agreement, despite having ideas, products, services, information, personal data or any other similar elements they wish to protect from being disclosed to third parties not included in the non-disclosure contract.
 
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05. What are the advantages of a non-disclosure agreement (NDA)?
 
A non-disclosure agreement is beneficial for any individual and public or collective public entity who wish to protect certain information from being publicly known, thus avoiding that a third party uses it for their own benefit to the detriment of the disclosing party. A non-disclosure contract allows signing a business agreement with other agents without having to disclose the information covered by the agreement, which you wish to hide, especially from competitors, or for any other reason.
 
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06. What does a non-disclosure agreement guarantee (NDA)?
 
A non-disclosure agreement, by forbidding that certain information or knowledge be shared with third parties not included in the non-disclosure contract, also covers penalties for the non-truant party. While such penalties do not prevent the breach of confidentiality, nevertheless, due to their severity, they are of an intimidating or preventive nature and may also compensate the detrimented party for any damage caused.
 
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07. Who can make a Non-Disclosure Agreement (NDA)?
 
Anyone can draw up a non-disclosure agreement, but due to the legal complexity and knowledge of substantive law implied, it is clear that the non-disclosure contract is drawn up by a lawyer in order to effectively ensure and guarantee the confidentiality rights.
 
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08. Should I make a Non-Disclosure Agreement (NDA) for each project?
 
Unless the Non-Disclosure Agreement (NDA) expressly refers that it is intended to remain in effect in various projects, the non-disclosure contract is usually assigned to one project only. In fact, considering the legal security in case of eventual conflicts, it is convenient that they be so. However, if the non-disclosure agreement is intended for various projects, as mentioned above, it should be as detailed as possible describing the scope of confidentiality and which specific projects it is intended for, without analogies or extensive interpretations.
 
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09. How to choose a Non-Disclosure Agreement (NDA)?
 
The choice of a Non-Disclosure Agreement (NDA) should obviously, by virtue of the above mentioned in paragraph 8, be adapted to the actual situation as much as possible and analogies should be taken into consideration.  If the predicted Non-Disclosure Contract (NDA) is comprehensive and complete then this per se already represents a huge security since the actual situation will inevitably fall under the clauses expected for the same, even though many of these clauses are not accurate. I'd say that nothing is lost because of more.
 
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10. What happens if a Non-Disclosure Agreement (NDA) is not used?
 
By not using a non-disclosure agreement (NDA), the sharing of information is completely exposed to third parties without any reaction possible, which may result therefore in huge losses for those who held confidential information, and the very reason for a specific agreement can possibly be at risk where a non-disclosure contract could have been applied.
 
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11. How does a Non-Disclosure Agreement (NDA) protect my information?
 
The party revealing a particular issue has the ability to predict which information they wish to see protected from third parties and how to do so, that is, what action to take to prevent a breach of confidentiality. In doing so through a non-disclosure agreement (NDA), the information is automatically protected, otherwise the detrimented party can be compensated for their loss if not.
 
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12. What are my obligations after signing the Non-Disclosure Agreement (NDA)?
 
The obligations of the party receiving confidential information are only those covered by the Non-Disclosure Agreement (NDA) itself and the disclosing party cannot require more than is expected nor can the receiver do less than is entrusted. Therefore, Non-Disclosure Agreements are often considered to be very important and that they shall be done in writing. Basically, it avoids any arbitrary and unfair or restrictive interpretations.
 
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13. Can a Non-Disclosure Agreement (NDA) have more than two parties?
 
A Non-Disclosure Agreement (NDA) can in fact have more than 2 parties. For example, it is sufficient that, in the draft submitted by the disclosing party, there is more than just one person or entity. Thus, in this case, the parties should be identified and described as much as possible in the Non-Disclosure Contract, all parties should sign at the end, and without this signature they will not be binded (even if identified in the non-disclosure agreement).
 
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14. Why the need to specify a jurisdiction in the Non Disclosure Agreements (NDA)?
 
In a non-disclosure agreement, as in all others, the indication of a jurisdiction is essential to define in which country or court the problem arising from the same Non-Disclosure Contract (NDA) should be solved, in the event of this happening. If this was not so, then one of the parties, the one jeopardized by a certain situation, could bring about legal proceedings in any court or part of the world, with all the losses resulting thereof, i.e., distance, time, money, etc.
 
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15. For how long shall I endure the responsibilities stemming from the Non-Disclosure Agreement (NDA) after it expires?
 
The responsibilities of a Non-Disclosure Agreement (NDA) shall continue until well when the parties wish, that is, until whenever necessary to protect any issue, provided that this is covered by the agreement, without which, if not included in the Non-Disclosure Contract (NDA), the responsibilities cease when the Non-Disclosure Agreement (NDA) expires and anything that is not provided for in writing cannot be required afterwards.
 
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16. What are the essential elements of a Non-Disclosure Agreement (NDA)?
 
In addition to the clauses concerning the project, the underlying confidential information and how to prevent it from being disclosed, that is, what to protect and its scope, the Non-Disclosure Agreement (NDA) shall contain the parties' full identification, the duration of the agreement, the penalties for an eventual breach, the impediment of making any amendment or supplement to the Non-Disclosure Contract (NDA) without prior consent and in writing, the jurisdiction and legislation in force for the Non-Disclosure Agreement Form (NDA), who is responsible for the costs of the Non-Disclosure Agreement (NDA), if any, and of course the signature of all parties in the last page and their initials in all other pages.
 
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17. What types of Non-Disclosure Agreements (NDA) are there as to the number of parties?
 
Taking into account the nature or relationship between the disclosing party and the receiving party, there are basically three types of Non-Disclosure Agreements. Unilateral agreements where only one party will disclose information of a confidential nature to another, thus forcing the other party to confidentiality.
Mutual agreements where both parties share confidential information and therefore both are bound to secrecy. And multilateral agreement where two or more parties intervene in the project and, therefore, all parties are bound to secrecy under the terms of the agreement.
 
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18. In which major areas do the Non-Disclosure Agreements (NDA) apply the most?
 
Non-Disclosure Agreements basically apply to areas like transactions or purchase where, for example, one of the parties will sell a company or part of a company to another party and it becomes necessary for the purchaser, in this case the receiving party, to check the account books of the former party. Areas such as patents for an invention where one of the parties discloses the final idea to the other, which helps in the process of manufacturing a particular good. Areas where an employee develops an activity for his or her employer which involves knowledge on some issues that should be protected from being known by third parties. In the area of the arts where, for example, making a record implies knowing that there is a song and that this information should be considered confidential for the time being. Then there are minor less all-encompassing areas where one may effectively wish to protect any confidential information.
 
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19. Is a confidentiality agreement the same type of agreement as a non disclosure agreement (NDA)?
 
Yes, non-disclosure agreements have lots of different names like confidentiality agreement, non-disclosure contract, etc. The purpose for those agreements are basically and virtually the same, to guard against disclosure of confidential or proprietary information of one or both of the parties to the agreement.
 
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20. Is an oral non-disclosure agreement (NDA) valid?
 
Depending on the legal framework of each country where the non-disclosure agreement is granted, the agreement is generally valid. Nevertheless, even though this is allowed, common sense and legal safety dictate that agreements should only be done in writing as this document is most often the only evidence there is to resolve any conflicts arising from the established business relationship between the parties. Therefore, signing a written non-disclosure contract is the only way to ensure that all issues raised by the party disclosing confidential information do not go beyond the desired scope without there being a penalty on the party breaching that non-disclosure agreement.
 
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21. What are the procedures for signing a non-disclosure agreement (NDA)?
 
The procedures to be taken into account before signing a non-disclosure agreement include, of course, prior analysis of the situation that requires such an agreement, so that the non-disclosure contract may cover all the specific situations that are to be safeguarded. All this preparatory work should be done before signing the confidentiality agreement. The contracting parties should monitor this work and play an active role in order to have thorough and mutual knowledge of the document. Finally, when signing a non-disclosure agreement form, the parties should bring all personal identification documents so that the truth of the act may be witnessed.
 
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22. When can I ask to cease being under a Non-Disclosure Agreement (NDA)?
 
You immediately cease to be under a non-disclosure agreement when the non-disclosure contract you signed reaches the date after which it is expected to no longer be in effect. You can also cease to be under an agreement when both parties revoke or otherwise terminate the non-disclosure agreement by any other means. Moreover, you can cease to be under the non-disclosure agreement form if you request that to the other party and they accept it. In the latter case, if it is a Red Horse-NDA, this amendment to the agreement will necessarily have to be in writing, again, for the safety of the parties themselves.
 
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23. What kind of document should I write to cease being under a non-disclosure agreement (NDA)?
 
As mentioned above, a non-disclosure agreement generally ceases by 3 ways. When the date it covers and by which it takes effect is reached, in which case nothing is to be drawn up or presented. When the parties terminate the agreement for any reason, which should be done in writing, or when one of the parties requests changes to the non-disclosure agreement so as to withdraw from the scope of the agreement, in which case a written document should be drawn up where the other part also expressly agrees to those changes.
 
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24. Between a non-disclosure agreement (NDA) from a supplier and a client, which should I choose?
 
That is irrelevant because, in most cases, non-disclosure agreements are identical. In any event, some may protect one of the parties more depending on which party drew up the agreement. Therefore, should such a situation occur, you should obviously choose the one that fits your trading position. In this regard, however, some caution should be taken because most laws prohibit the abuse of a certain position, as well as the excess of obligations not in favour of one of the parties in comparison to the other parties.
 
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25. If I make a mistake signing a non-disclosure agreement (NDA) what can I do?
 
If you are still within the time of signing the non-disclosure agreement, you should destroy the signed document and sign a new one that has been corrected. If you've already signed the agreement in a previous time, you should immediately contact the other party and explain the problem so that they can find a solution as friendly as possible to repair or correct the error. If the other party does not agree, the only thing you can do is resort to legal means to annul the agreement, and you should then provide grounds for the error, which will only be acceptable in the terms set out by the general Law providing for the relevance of the error as grounds for annulment the non-disclosure agreement.
 
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26. Can I adapt a Red Horse-NDA Non-Disclosure Agreement (NDA) to my situation?
 
It is always possible to adapt pre-existing agreements to anyone's actual situation and this non-disclosure agreement is no exception, but this is still extremely dangerous because the adaptations can end up not serving the actual situation or may be so tampered that they lose solidness and sequence, giving rise to even more problems. And the more meticulous or complex, the worse it is. The Red Horse-NDA non-disclosure agreement already provides for numerous situations that will certainly be covered in your particular case. This agreement is sufficiently detailed to cover almost all situations, no matter which business field, so rarely will you need to change what is already provided for therein.
 
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27. When making a deal with the client, is it important to present a multilingual Red Horse-NDA non-disclosure agreement (NDA) immediately?
 
Considering the complexity of the business deals, the haste required by the business and even the global economy in which the businesses operate, the existence of an already translated non-disclosure agreement saves time and resources all too evidently. In parallel, it prevents or avoids possible conflicts arising from different understandings underlying the languages per se. Therefore, you can only benefit from the acquisition of a multilingual agreement.
 
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28. Which language prevails in the multilingual Red Horse-NDA non-disclosure agreement (NDA)?
 
The non-disclosure agreement is originally written in English and, as expressly mentioned therein, any doubt as to linguistic interpretation should be raised in light of the English language.
 
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29. When can a trade secret not be protected by a non-disclosure agreement (NDA)?
 
A trade secret cannot be protected by a non-disclosure agreement if it is not expressly provided for in the non-disclosure contract. Extensive interpretations, not literal, are concepts that are too generic and therefore dangerous, often being banned from agreements in general since they give rise to too many doubts in case of a possible conflict. Therefore, if you do not wish to protect a trade secret, just don't include it in the non-disclosure agreement form and vice versa. If you do not wish to include this secret in the non-disclosure agreement, there's no need to mention that because it will be automatically unprotected, but the contrary is not true because in order to protect a secret, it should always be discriminated.
 
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30. Are patents covered by the Non-Disclosure Agreement (NDA)?
 
All information provided by the disclosing party to the receiving party under a non-disclosure agreement is covered per se, albeit a patent already registered or not. It is said that the fact of being a registered patent does not make it more or less safe for being covered by the non-disclosure contract, that is, in the event of being unduly disclosed, the detrimented party can be compensated in the terms of the agreement or the legislation in force for patents. While if the patent is not yet registered and not included in the non-disclosure agreement form, then its originality or geniousness might be lost without any compensation.
 
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31. Which types of intellectual property are covered by a Non-Disclosure Agreement (NDA)?
 
There are many and varied types of intellectual property covered by a non-disclosure agreement (NDA). For example: copyrights, such as books, photos, music or art; a trademark, such as symbols, words or logos; a utility patent, such as manufactured machines and items; and a trade secret, such as a formula, method, information, etc.
 
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32. What is the difference between a non-disclosure agreement (NDA) and a security system?
 
There are no major differences between a non-disclosure agreement and a security system, moreover, the first appointment includes a second even though the reverse may not be true. The non-disclosure contract referred to above is necessarily a security system for trade and business in general and not only while a security system can be something that is not a non-disclosure agreement form. For example, an indemnity clause in an agreement is itself a security system, much less complex and elaborate, it is true, than a non-disclosure agreement.
 
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33. Should any type of business transaction have a non-disclosure agreement (NDA)?
 
It is clear that not all business transactions should have a non-disclosure agreement (NDA). For example, if it is only a product resale in the final phase of the production chain, being a mere reseller without any knowledge about the manufacturing of the product, it is not likely that your activity will in any way put at risk a certain secret that should be protected as regards the product itself.
 
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34. What are the dangers of abuse in using non-disclosure agreements (NDA)?
 
The dangers arising from excessive use of non-disclosure agreements (NDA) are not too harmful to the business activity. Eventually, and in a purely hypothetical field, they can be so complex and unnecessary that they will repel potential business partners or can even be counterproductive to the business agility that is always imposed in a business environment. Thus, its use should be as strictly necessary, but, in case of any doubt, do not hesitate to propose a non-disclosure agreement.
 
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35. Which is the preferred means to send a Non-Disclosure Agreement (NDA)?
 
The preferred means for sending a non-disclosure agreement (NDA) is debatable and subjective but the internet nowadays is an insurmountable tool, especially when compared to via post or fax. E-mails and the several different ways to send a document in a safe and inviolable manner via e-mail are considered to be the sending vehicle par excellence and Red Horse-NDA is no exception to modernity when promoting your non-disclosure agreement via the Internet.
 
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36. Which is the preferred means to file a Non-Disclosure Agreement (NDA)
 

There are many and varied ways to file a non-disclosure agreement (NDA). Firstly, and as regards the means, you can use the multiple devices that you certainly have at your disposal, such as backups on hard disks, pen drives, memory sticks, cloud computing or even through data file banks like Google Docs. On the other hand, if you are part of a large company with many employees, you should file the non-disclosure agreement form in order that all employees know that there is a non-disclosure agreement signed between entities so as to be able to work daily and peacefully without worrying about safety. Therefore, it does not suffice to have signed a non-disclosure contract, but is paramount that employees are aware of this fact. A final recommendation is that you remember that the link sent to the email address indicated in the download process of the Red Horse-NDA only allows you to do it once so do not save it in the same Link. You should print the document, sign and stamp it and then save the template in any of the devices mentioned above.

 
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37. Can I photocopy and distribute a non-disclosure agreement (NDA) to employees?
 
A copy of the non-disclosure agreement, duly signed by the different parties, not only can but should be distributed so that everyone is well aware of the scope and extent of the secret at issue, therefore avoiding breaches to the agreement due to lack of knowledge or negligence. Awareness of exactly what is at issue prevents, in many cases, problems from arising due to lack of knowledge. It's almost like saying, "A situation prevented is worth two!".
 
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38. Can I make an addendum to the non-disclosure agreement (NDA)?
 
No, under normal conditions you cannot freely make addenda to non-disclosure agreements (NDA) that have already been made final and signed. This prohibition can, nonetheless, be overcome if, as is the case of the Red Horse-NDA, the non-disclosure agreement contains a clause that provides for that addendum. Nevertheless, in such cases, the addendum is normally written and results from mutual consent, i.e., it must be approved by the other party. Again, this requirement results from legal and trade security.
 
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39. When we hire new employees, should they also sign non-disclosure agreements (NDA)?
 
Indeed, the fact that new employees or collaborators are hired during the term of a non-disclosure agreement implies that they could also be involved in that business or trade secret, otherwise, it would be perfectly useless to propose a non-disclosure contract (NDA) of this sort, just like tending to close the door while keeping the window wide open. Therefore, when starting their collaboration, they too will be subject to the same non-disclosure agreement form (NDA).
 
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40. Should each department in the company have a specific non-disclosure agreement (NDA)?
 
It depends on what each department does in the company and the degree of involvement that the department has in the business or activity subject to the confidentiality terms in question. At least the non-disclosure agreement proposed by the head of the company should be readily extended with caution to all the company departments for security reasons. Then, whether the non-disclosure contract for a particular department should be more specific or different depends on what the department does and especially on the degree of specificity that the non-disclosure agreement form initially proposed contains thereof. In the case of the Red Horse-NDA, it is most likely to suffice given that it is comprehensive enough.
 
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To learn more about non-disclosure agreements, turn to more frequently asked questions about non-disclosure agreements.
 
41. If I send a non-disclosure agreement (NDA) to a client, what should I do?
 
In case you need to send a non-disclosure agreement (NDA) to a client, obviously it should clearly explain why you are doing so because it is a highly sensitive restriction to the freedom of expression or communication of the receiving party. The latter should have a clear notion of the reasons for such restriction and legal binding to confidentiality, in order not only to agree to sign the non-disclosure agreement (NDA) but also to play a better role in protecting that confidential information.
 
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42. What should I exclude from a non-disclosure agreement (NDA)?
 
Basically, you should try to exclude everything that can represent generic concepts or expressions that do nothing to help understand the role of each party involved in the non-disclosure agreement (NDA). Areas of dubious understanding, ambiguous concepts or expressions, including contradictory positions, will always be an obstacle to the practical application of an agreement. The non-disclosure agreement (NDA) presented by Red Horse-NDA is as precise as possible, so you can relax when subscribing because there is no need to exclude or add a thing.
 
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43. Does a non-disclosure agreement (NDA) have a definite term?
 
Yes, usually all non-disclosure agreements have a definite time that can be set to any date or the completion of any work. Imagine that you are producing a film; it is evident that the non-disclosure agreement (NDA) will end as soon as the film production is finished and it's the film premiere. The term can therefore depend on a particular act or on a specific date set out in the agreement.
 
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44. If a company is acquired by another, is it subject to non-disclosure agreements (NDA)?
 
Everything depends on what the non-disclosure agreement says about it and usually non-disclosure agreements enshrine a clause in which this situation is also provided for, being natural that they continue to maintain confidentiality even after the sale of the receiving company, for instance. But the deal concerning the company should also comprise a non-disclosure agreement (NDA) to that effect, subjecting the purchasing party to the terms of confidentiality. In the first case, in the light of a possible breach of confidentiality, the disclosing party can only prosecute the party that sold the company, while in the latter case, it can only prosecute the party that bought the company.
 
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45. Who can sign a non-disclosure agreement (NDA)?

 
Anyone can sign a non-disclosure agreement (NDA) provided that they are authorized and have the power of attorney to do so, in the case of legal persons, and provided that they have a legal personality, i.e., someone who is able to act as a single entity for legal purposes, in the case of individuals. Having legal personality means, for instance, to be more than 18 years old, with no mental disorder, not being legally interdicted or reduced in their rights by any legal proceedings, etc.

 
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To learn more about non-disclosure agreements, check more frequently asked questions about non-disclosure agreements.
 
46. If a non-disclosure agreement (NDA) has a fake signature, what should I do?
 
This is clearly a case for the police, of a criminal scope therefore, and when confirming a fake signature affixed to a non-disclosure agreement, you should immediately report this to the police and, in case of prior breach of confidentiality, prepare legal action against the forger, so as to be compensated for any damages resulting from the breach.
 
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47. Handwritten or digital signatures, which should I use in a non-disclosure agreement (NDA)?
 
There are mechanisms for digital signature certification granting total security at the time of signing non-disclosure agreements. Nevertheless, these tools are not very common because security requires the signature be handwritten and in person, given that this is the only guarantee the other party has that it is the correct individual that is signing the non-disclosure agreement. It is also important to check the identity of the various stakeholders with their personal ID documents.
 
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48. It is possible to exclude part of the non-disclosure agreement (NDA) in specific situations?
 
In some cases it could be possible, especially with the explicit agreement of the other party, however, this is not advisable since it may endanger the consistency and coherence of a non-disclosure agreement that follows a specific line of thought. When doing so, and I repeat with the consent of the other party, you should always be careful to avoid leaving inconsistencies in the non-disclosure agreement being changed.
 
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49. What type of language should I use in a non-disclosure agreement (NDA)?
 
The language used in a non-disclosure agreement (NDA) should be clear, concise and consistent. If you wish to see a secret protected in a safe way and without questions, all the clauses under the non-disclosure agreement (NDA) will have to suit that purpose. It is not good to use indeterminate or generic concepts and an agreement can become confused if too extensive or not so objective.
 
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50. Before interviewing an employee, should I ask him or her to sign a non-disclosure agreement (NDA)?
 
It basically depends on two issues. If the interview does not cover any aspect of the secret that you want to protect, it would not be very appropriate to ask the candidate to sign any non-disclosure agreement (NDA) before starting their collaboration. If the question does concern the secret, then you'll have to suggest that the candidate can only undergo the interview if he or she agrees to sign a non-disclosure agreement (NDA), otherwise your secret will be completely unprotected if he or she is not selected.
 
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51. How can I get a non-disclosure agreement (NDA)?
 
A non-disclosure agreement should be obtained from a lawyer or in a place where there is a non-disclosure contract of the sort provided that it is drafted by a lawyer. Do not try to copy an agreement yourself because you may not have the necessary know-how to draw one up in a reliable manner, and do not try to get a non-disclosure agreement form (NDA) from someone who is not a lawyer because the risk of having a wrongly drafted agreement or one full of vices is huge.
 
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52. If an employee is sacked, should he or she still continue to comply with the non-disclosure agreement (NDA)?
 
Yes, if the non-disclosure agreement (NDA) is well drafted and duly provides for all situations, employees, even if sacked, should continue to comply with the non-disclosure agreement. And this not only for situations of employees being sacked but also other forms of termination of a labour contract, such as mutual withdrawal, unilateral resignation by the employee, job extinction, term of the labour contract, etc.
 
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53. What and who are the Disclosing and Receiving parties in the Non-Disclosure Agreement (NDA)?
 
The Disclosing party in a non-disclosure agreement (NDA) is the one who holds the confidential information that is to be protected and should take care to protect that information, while the Receiving party is the one who receives in any form or for any reasons the confidential information that is covered by the non-disclosure agreement (NDA) and who is required not to disclose the that information. The Disclosing party is usually the one that is most interested in the Non-Disclosure Contract (NDA) and, therefore, it is the party that draws up the agreement, while the Receiving party plays, in this case, a much more passive role, merely accepting or not the clauses in the Non-Disclosure Agreement form (NDA).
 
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54. Is there an obligation to deliver all documents, materials, products, etc., to the Disclosing party once the Non-Disclosure Agreement (NDA) expires?
 
The non-disclosure agreement (NDA) itself should contain the indication that, on ending the business relationship that made one of the parties disclose confidential information to the other party, all the information shared under this agreement, regardless of the form of material (e.g., computer file, paper, product, etc.), must be returned to the Disclosing party. This usually happens when the Receiving party ends collaboration with the Disclosing party.
 
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55. Once the Non-Disclosure Agreement (NDA) expires, should I draw up another document?
 
Yes, once the term of the non-disclosure agreement (NDA) comes to an end, you should prepare a document commonly known as a delivery affidavit where the receiving party states having delivered everything to the disclosing party, especially all the elements in his or her possession under the non-disclosure agreement (NDA) which, belonging to the disclosing party, could put confidentiality at risk. This document should be as descriptive as possible so that no doubts may eventually be raised in the future.
 
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56. Does the fact of sharing elements with other parties under a Non-Disclosure Agreement (NDA) change their ownership?
 
No, the fact of sharing elements, such as information, material, products, documents, etc., under a non-disclosure agreement (NDA) does not change the their ownership, which means they continue to belong to the Disclosing party, if that be the case, during and after the term of the agreement. In any case, it is appropriate that this be safeguarded in the Non-Disclosure Agreement (NDA) by introducing a clause that explicitly refers to this and it is also important that all documents contain their origin or ownership.
 
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57. Can the receiving party issue or disseminate a memorandum related to the subject of the Non-Disclosure Agreement (NDA)?
 
No, unless the General Law so requires, a memorandum or any dissemination of news or information related to subject of the Non-Disclosure Agreement (NDA) cannot be issued on behalf of the Receiving party without the express consent of the Disclosing Party. This rule should, nevertheless, also be provided for in the Non-Disclosure Agreement (NDA) so that there is no room for doubt. If it still so happens, there will certainly be some form of penalty on the party who breached the non-disclosure contract and, consequently, a potential claim for compensation.
 
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58. If one of the parties refuses to put the Non-Disclosure Agreement (NDA) in writing?
 
If the agreement or the situation stemming from the agreement does not involve confidentiality issues, the parties do not have this imperative, however, if the contrary occurs, a Non-Disclosure Agreement (NDA) is essential so that both parties are protected regarding any arbitrary or more general concepts. One of the parties verbally saying there must be secrecy regarding certain issues is obviously not enough. Therefore, such refusal shall imply that the parties will not sign the non-disclosure agreement (NDA) since the element that would punish any infringement is lost.
 
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