sample text of a NCND

Non-Disclosure Agreement

The following is a sample mutual non-disclosure. As with all sensitive and important/valuable agreements, I would contact an experienced attorney who can make sure that necessary provisions are added/modified relatively quickly and at limited cost. People are always sorry later when their critical deals go sour and wish they just had made the small investment to have the deal looked over properly!


MUTUAL NON-DISCLOSURE AGREEMENT

This MUTUAL CONFIDENTIAL NONDISCLOSURE AGREEMENT is made _________ (“Effective Date”) between _____________ ("Company"), having a place of business at _____________ , and__________ (“Company2”), having a principal place of business at ________. The parties hereby agree that disclosures of Confidential Information shall be governed by the following terms and conditions. A party receiving Information under this Agreement is referred to as "Recipient," and a party disclosing Information is referred to as "Discloser."

1. Confidential Information. For purposes of this Agreement, “Confidential Information” may include, but is not limited to, information regarding proprietary products, potential product and/or service offerings, source code, documentation, customer names, customer data, business plans, financial analysis, future plans and pricing, the marketing or promotion of any product, and business policies and practices. The parties may only use the Confidential Information pursuant to the signing and execution of a written agreement between the parties.

2. Limitations of Use. Each party agrees to use the same degree of care, but no less than a reasonable degree of care, to protect against the unauthorized disclosure of Confidential Information as it uses to protect its own Confidential Information. Recipient agrees to disclose Confidential Information only to its employees or independent contractors with a direct need to know for the above stated purpose, and who are bound by obligations of confidentiality no less restrictive than the terms of this Agreement.

3. Exclusions. Recipient shall have no obligation under this Agreement as to Confidential Information which: (a) is known to Recipient at the time of disclosure; (b) is independently developed by Recipient without use of the Confidential Information and without breach of confidentiality; (c) becomes known to Recipient from another source without confidentiality restriction on subsequent disclosure or use and without breach of confidentiality; (d) is or becomes part of the public domain through no wrongful act of Recipient; or (e) is disclosed pursuant to any judicial or governmental request or order; provided that Recipient takes reasonable steps to give Discloser sufficient prior notice so that it may contest or limit any such request or order.

4. Expiration. This Agreement, and each party’s obligations hereunder, shall expire ____ years from the Effective Date. Upon termination or expiration of this Agreement, Recipient will cease use of and return or destroy all Confidential Information.

5. General. (a) Assignment. This Agreement is not assignable or transferable by either party; any attempted assignment will be void and without effect, unless such assignment is agreed to in writing by both parties. (b) No Other Rights. No license or transfer of intellectual property rights in any Confidential Information are provided hereunder, either expressly or by implication, estoppel or otherwise. (c) No Agency. This Agreement does not create any agency or partnership relationship. (d) Export. The parties acknowledge that the export of Confidential Information may be subject to regulations which may prohibit the export of such information to certain foreign countries or the disclosure of such information to certain foreign nationals. The parties, therefore, agree to comply strictly with all applicable export laws, regulations, executive orders and the like. (e) Choice of Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of _________ , excluding its choice of laws rules. (f) Complete Agreement. This Agreement constitutes the complete agreement between the parties on the subject matter identified herein. Any modifications to this Agreement must be made in writing and signed by both parties.

 

Here is a noncompete section that may be added in:

Non-Competition and Non-Solicitation

(a) Covenant Not to Compete. Consultant agrees that, during the engagement and for a period of six (6) months thereafter, Consultant will not directly compete with the Firm in the Business of the Company, and that Consultant will not, and will not permit its employees or representatives to, act as an officer, director, employee, consultant, shareholder (with respect to public companies, shareholder owning more than 5% of the outstanding stock), or agent of any entity which directly competes with the business in which the Company is now engaged or in which the Company becomes engaged during the term of Consultant’s engagement; however, such covenant shall be subject to the Company remaining in operation for the restrictive period defined hereunder.

(b) Non-Solicitation of Employees/Consultants. During the term of Consultant’s engagement by the Firm, and for a period of one (1) year thereafter, Consultant shall not, directly or indirectly, without the prior written consent of the Firm, solicit or induce any employee or consultant of the Firm or the Company to leave the employ or service of the Firm or Company or hire, retain, employ, or engage for any purpose any employee or consultant of the Firm or Company; however, such covenant shall be subject to the Company remaining in operation for the restrictive period defined hereunder.

(c) Interference of Business. Consultant will not directly or indirectly induce any of the Firm’s and/or Company’s suppliers or vendors for one (1) year after the termination of its engagement to terminate, curtail or restrict their activities with the Firm and/or Consultant or to change their business practices in any manner adverse to the Firm and/or the Company.

 

Note that many of the NDA-NC Agreements typically have clauses in them regarding the ownership of all Intellectual Property by the Employer. This is important if you are doing the retaining of a contractor.