Many company employees and professionals who work in an environment where there may be intellectual property are confronted with a concept such as NDA. What is it, why is such a contract needed and how is it formed? If you know all this, then this will help to avoid the loss of intellectual property. Consider the issue from all sides.
NDA - what is it?
Let's start by deciphering the abbreviation. The concept stands for "Non disclosure agreement", and is translated into Russian as the "Non-disclosure agreement." Everyone heard about it, but few went into the details of this treaty. In other words, the NDA is a confidentiality agreement . It is signed by those persons who do not want their intellectual property to fall into the possession of other persons.
When is such a contract needed?
Now that we are more or less clear on what this NDA is, we can go further. In what cases is it necessary to conclude such an agreement?
We give a simple example. Let's say you invented a perpetual motion machine or something similar. Given that it is almost impossible to develop this yourself, you will have to work with a whole staff of specialists. Each of them will have access to drawings and calculations, and at the final stage of development, they can simply steal the project, passing it off as their own. It will be very unpleasant if someone takes possession of such data and assigns all your work to yourself. Therefore, with all employees who have access to important information, it is necessary to conclude a non-disclosure agreement. After signing, they do not have the right to tell anyone about the developments to which they have access. This is the simplest example. NDA in this case is not just shown, it is necessary.
Some experts argue that this agreement takes place when working with real estate: apartments, shops, shopping centers and other buildings. However, in fact, signing the NDA is a normal practice in many areas. It is concluded by those who deal with technical developments, computer programs and other similar things. It is possible that initially the NDA was used when working with real estate, but later it spread to other areas where it could be useful.
If the contract is concluded for real estate, then the parties do not have the right to disclose the value of the facilities, the area of the premises under work, as well as other possible information. The same goes for other areas. For example, if the NDA confidentiality agreement relates to a computer program, then the parties are prohibited from divulging the principles of the program, listings, transferring source files and program codes. If strongly generalized, then any information that relates to intellectual property is not subject to disclosure, moreover, in any form.
Types of Agreements
There are different types of NDA, each of them has some unique features:
- Mutual, in which both parties transmit information to each other, which is prohibited to disclose.
- One-way, in which one side transmits the other information. The second participant undertakes not to transmit to anyone the data that is the subject of the agreement.
Note that some sources have a different name for these two types of agreements. However, this does not change the essence. Even in Wikipedia it was previously written that in a unilateral non-disclosure agreement only one person draws up and signs it. But this is impossible in practice, because the essence of any agreement comes down to two or more participants who mutually commit to fulfill certain obligations.
Samples
This is what the old NDA sample looked like:
The document is presented in English specifically to make it clear where the acronym NDA came from.
A sample NDA agreement in Russian looks like this:
The contract must be signed by two parties. It can be both legal entities and individuals, that is, people or some kind of company. If the contract is concluded between an individual and a legal entity, then all people who are related to this legal entity will be liable in case of violation of the contract and disclosure of secret data.
For example, a well-known Microsoft company employs a person who has access to the development of a new program. And Microsoft itself at the same time signed an NDA agreement with another company, which is also related to the development of the program. This person will be liable if disclosed. Moreover, even if some cleaner at Microsoft accidentally looks into the computer and stumbles on a program listing, and then transfers it to a third party, he will also be held responsible, despite the fact that he is not involved in the development of the program at all. So it is advisable even for office staff to understand what it is - the NDA.
Content of the contract
In any contract with legal force, both parties are required to indicate their data. NDA is no exception. Its content should be as follows:
- The names of both participants. If these are individuals, then their full name, as well as passport data must be indicated. If both parties agree not to provide passport information, then it can be excluded from the contract. If the parties are legal entities, then the names of firms must be indicated, as in the constituent documents.
- Signatures. With individuals, everything is clear. If these are legal entities, then representatives must sign the document.
- Information that is not subject to disclosure.
- Date of conclusion.
Here the third point is of interest. How to indicate information in the contract that cannot be disclosed? But in fact, everything is simple, you just need to list the data prohibited for distribution. If the subject of the agreement is a computer program, then the agreement must indicate what is not subject to disclosure: codes, compilation results, operating principle, listings, etc. Parties may indicate whatever they consider appropriate. There is no limit to this. Some participants write in the contract that even information in the promotion of development, etc., is subject to non-disclosure.
An appendix can be added to the contract, where, if desired, specific information protected by the contract can be indicated. For example, you can attach program listings. In the future, this will simplify the procedure for proving violation of the terms of the contract in the event that intellectual property is in the hands of third parties.
What data can also be indicated in the contract?
Depending on the direction, the following data may also be indicated in the NDA:
- Responsibility for breach of agreement.
- Confidential information (for example, database or codes).
- Terms of validity. Information is confidential for a while, but not always.
At the request of the parties, other points may be included in the agreement that the participants consider necessary.
The risks
Most companies that work in the field of IT sign similar agreements with their employees. In this regard, the latter are interested in whether there is a risk for them to sign such agreements, because they indicate passport and other data that can be used, for example, for blackmail or for other purposes. This is true not only for the CIS countries, but also for Europe and even the USA.
There are no dangers in signing this agreement for various reasons:
- NDA is a legal legal document that provides for mutual responsibility. This is not a whim of the employer or company, to which this or that employee will have to obey. Ideally, such agreements should be used in all firms that use or develop products that may be related to, or even be related to, intellectual property.
- Passport information, which may appear in the document, serves only to identify participants, nothing more. It cannot be used for any other purpose. In addition, passport data is always indicated at the conclusion of any contracts, and this is normal.
- NDA benefits employees. By signing such an agreement, employees receive legal protection for their developments. The management of the company is also confident in its employees, and trust on the part of the company is worth a lot.
A person who understands what it is - the NDA, will not be afraid to sign such an agreement.
Responsibility
Any country has legislation providing for liability for copyright infringement. In Russia, for example, there is article 13.14 of the Code of Administrative Offenses, which provides for fines of 500-1000 rubles for non-compliance with NDA conditions. If information with limited access is disclosed by an official, then the size of the fine is 4000-5000 rubles. Criminal liability for the same actions is also possible.
However, in Russia there is no legal regulation of the NDA (not provided for in the law), so basically the amount of fines for the disclosure of classified information is written directly in the agreement. This is the most convenient and common option. For example, in the event of disclosure of information, the party that violated the obligation will be required to pay a penalty or damage. The amount of damage will be assessed by an independent expert company.
Conclusion
The conclusion of non-disclosure agreements is a normal practice that is used by many firms. Even when hiring employees, they are immediately asked to sign this agreement and if they refuse, they simply do not want to cooperate with such a person. In a number of cases, the agreement does help protect firms in their interests and prevent the dissemination of confidential information.