Confidentiality agreements, also known as non-disclosure agreements (NDAs), should be tailored to address the parties’ specific needs and circumstances. If a confidentiality agreement does not include certain critical provisions, it may be ineffective. When reviewing a confidentiality agreement, attorneys should look for the following key elements:
- Identification of the parties. An NDA should clearly identify who is subject to the agreement’s confidentiality provisions. If there is an anticipated need for the recipient to share information with others inside his or her organization, the agreement should extend to those individuals.
- Whether the agreement is “mutual” or “one-way.” NDAs may be “mutual”, where both parties intend to share information with each other. Alternatively, an agreement may only be needed to protect the flow of information from one party to the other, in which case it’s a “one-way” contract. The agreement should make this distinction.
- A clear, specific definition of what “confidential” means. The definition of what information is to be protected is critical. If the intention is to protect both written and oral information, including information in letters, emails, and conversations, the agreement should specify that such types of communications are protected. If this definition is ambiguous, it may be difficult to enforce the agreement.
- How the recipient may use confidential information. What are the permissible uses for confidential information? The agreement should specifically document why the disclosing party is entering into the agreement to share confidential information with the receiving party.
- Duration of the agreement. An NDA should include specific language regarding how long the terms of the agreement are to be honored by the parties. Courts may not enforce unreasonable restrictions. What “reasonable” means will vary from case to case, however.
- Remedies for breach of agreement. Confidentiality agreements should also specify what the disclosing party’s possible remedies are if the receiving party breaches the agreement, including the disclosing party’s right to seek equitable remedies and the jurisdiction governing disputes.
Baer Reed provides an array of services to law firms, including NDA review. To learn more about how our legal professionals can help expedite your review of confidentiality agreements, contact us today.
Mr. Reyes graduated with honors from the Ateneo de Manila University, where he received the Procter and Gamble Student Excellence Award. He obtained his Juris Doctor degree from the Ateneo de Manila School of Law. During law school, Mr. Reyes was part of the Philippine delegation to the Willem C. Vis International Commercial Arbitration Moot held in Vienna, Austria. He was also a member of the Ateneo Society of International Law and the St. Thomas More Debate Society. He completed his internship at the Public Attorney’s Office. He wrote a thesis entitled: “To Kill A White Elephant: An Analysis of the Fiduciary Exception to the Corporate Attorney-Client Privilege”. Mr. Reyes is admitted to practice law in the Philippines and the State of New York.
Ms. Lardizabal-Manzano is a graduate of San Sebastian College-Recoletos, where she earned her B.A. in Political Science. In 2003, she received her law degree from Lyceum of the Philippines and was admitted to practice law in 2004.
Matthew Hersh earned a B.A. in Political Science from Columbia University in 1990 and graduated cum laude from Georgetown University Law Center in 1999. He also holds a master’s degree in international relations from the Georgetown University School of Foreign Service.
Cap. Avi Levak (Res. IDF) graduated from from Israel’s prestigious Ben-Gurion University of the Negev with a Bachelor of Science in Computer Science and Mathematics. He is also a Leadership and Communication coach trained in TuT coaching by Alon gal in Israel. Avi specializes in high-level, in-depth analysis of business and client needs, within systems and software strategy and architecture.
Ms. Tyler graduated cum laude from Georgetown University and received her law degree, cum laude, from Georgetown University Law Center. During law school, she interned at the United Nations Economic Commission for Europe. She also worked on The Tax Lawyer journal and was a member of the award-winning Barristers’ Council Mock Trial Team. Ms. Tyler is admitted to practice law in the State of California and the District of Columbia.
Ms. Cruz-Anonuevo graduated cum laude and top nine in her batch from Miriam College with a degree of Bachelor of Arts in InternationalStudies. She obtained her Juris Doctor degree from Ateneo de Manila University School of Law in Rockwell. During law school, she interned in Rivera, Santos, Maranan & Associates. She was also part of Ateneo’s Labor Law Bar Operations. She wrote her thesis on, “Stealing Privacy: Limitations on Media’s Photographic Invasion.,” Ms. Cruz-Anonuevo is admitted to practice law in the Philippines.
Ms. Aquino-Batallones obtained a Bachelor of Arts degree in Development Studies (with Minors in Global Politics and Hispanic Studies) from the Ateneo de Manila University. In 2011, she received her Juris Doctor degree from Ateneo de Manila University School of Law. During law school, she interned at Romulo Mabanta Buenaventura Sayoc & de los Angeles then became an intern of Ateneo Legal Services Center’s Clinical Legal Education Program.
Mr. De Guzman graduated from San Beda College with a degree of Bachelor of Arts Major in Economics and received his law degree from San Beda College of Law. He is multilingual and is fluent in three languages: Chinese, Filipino, and English. He was admitted to the Philippine Bar in 2003.