Unilateral NDAs that include noncompete agreements are often used by companies that hire contract workers. Noncompete agreements limit when, where, and for whom the contractor may work after completing the assignment. In order to be legally enforceable, an NDA must be specific. Nondisclosure agreements (NDAs) must differentiate among the kinds of confidential information to be disclosed. For example, trade secrets, contact lists, and business processes are all different kinds of confidential information. Also, because an NDA is a contract and contract law varies by state, it’s a good idea for the company to consult a lawyer when drafting an NDA. Much of what will go into a non-disclosure agreement are clauses that will protect the person receiving the information so that if they lawfully obtained the information through other sources they would not be obligated to keep the information secret. In other words, the non-disclosure agreement typically only requires the receiving party to maintain information in confidence when that information has been directly supplied by the disclosing party. Ironically, however, it is sometimes easier to get a receiving party to sign a simple agreement that is shorter, less complex and does not contain safety provisions protecting the receiver. Some common issues addressed in an NDA include: • outlining the parties to the agreement; • Definition of what is confidential, i.e. information to be held confidential. Modern NDAs will typically include a laundry-list of types of items which are covered, including unpublished patent applications, know-how, financial information, verbal representations, customer lists, vendor lists, business practices/strategies, etc; • Exclusions from what must be kept confidential. Typically, the restrictions on the disclosure or use of the confidential data will be invalid if the recipient had prior knowledge of the materials; the recipient gained subsequent knowledge of the materials from another source; the materials are generally available to the public; or the materials are subject to a subpoena. In any case, a subpoena would more likely than not override a contract of any sort; • Provisions restricting the transfer of data in violation of national security; • The term (in years) of the confidentiality, i.e. the time period of confidentiality; • The term (in years) the agreement is binding; • Permission to obtain ex-parte injunctive relief; • Obligations of the recipient regarding the confidential information. Quid pro quo (From the Latin meaning "something for something") indicates a more-or-less equal exchange or substitution of goods or services. English speakers often use the term to mean "a favor for a favor" and the phrases with
almost identical meaning include: "what for what," "give and take," "tit for tat", "this for that", and "you scratch my back, and I'll scratch yours".
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