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Protect Your Confidential and Proprietary Information, Knowledge and Materials with Non-Disclosure Agreements

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Paul R. Bedard, EsquirePaul R. Bedard, Esquire

A non-disclosure agreement, also known as a confidentiality agreement, is a legal agreement that is made between at least two parties that details the information, knowledge and materials being shared between the parties and the legal obligations created by the agreement. Among other uses, a non-disclosure agreement can be utilized within an employment agreement to safeguard company-owned confidential information or to protect knowledge, information and materials shared with an outside party for the purposes of exploring a potential business relationship. Non-disclosure agreements can be mutual or unilateral. A mutual agreement is utilized when both parties are sharing anything that is considered confidential. A unilateral agreement is used when only one party is making a disclosure.

The most critical elements of a non-disclosure agreement are the definition of confidential information, the exclusions from confidential information, the obligations of the receiving party and the time periods covered by the agreement. Various, yet useful, miscellaneous provisions inevitably round out most non-disclosure agreements. This article is intended to provide an overview of these agreements. However, this article is not intended as legal advice. Widely varying laws, specific to each jurisdiction, prohibit one-size-fits-all recommendations. Please consider these comments as merely an educational guide to assist you when you consult your own attorney for specific direction.

Definition of Confidential Information

Defining what is being protected from disclosure is fundamental. When I represent a client who is disclosing information, I draft and/or negotiate the broadest definition possible. Conversely, a receiving party in a non-disclosure agreement will typically attempt to narrow the scope of what is being protected. A sample broad definition of confidential information includes "any and all information or material, oral or verbal, that has or could have commercial value or other utility in the business in which the disclosing party is engaged."

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