Legal support in concluding a confidentiality agreement, preparation of an NDA
Entrepreneurial activity is inextricably linked with the receipt from the counterparty of one or another important information necessary for the fulfillment by entrepreneurs of the obligations indicated in the agreements and contracts concluded. At the same time, such information received is often confidential for other participants in the business process. Information, as a rule, is divided into publicly available information, as well as information, access to which is limited by federal laws (restricted access information).
At the same time, confidential information includes any information, access to which is restricted by law: personal data, information constituting professional (lawyer, audit, etc.), commercial, official and state secrets. As a rule, access to confidential information is obtained by an employee of an organization with whom an employment relationship is formalized, and confidential information becomes available when fulfilling obligations under an agreement concluded between business participants.
In order for confidential information to be protected and not distributed to third parties, the organization needs to develop a local regulatory document (confidentiality agreement), which determines what information is confidential for their employees and counterparties and is not subject to distribution without the consent of the owner of such information. In addition to the confidentiality agreement drawn up, it is important for the company to determine who has access to such information, how this access is provided, and what responsibility will follow for violation of the requirements of such an agreement. At the same time, it is important to understand that confidential information does not always coincide with the concept of a trade secret; as a rule, the concept of confidential information is broader than the concept of a trade secret.
So, for example, employees of the company must be familiarized against receipt with such a local document and the trade secret regime, with measures of responsibility for its violation, and also create the necessary conditions for the employee to comply with the trade secret regime established by the employer. In case of disclosure of such information by an employee of the company, the employer has the right to demand compensation for losses caused to him by the disclosure of such information.
For the company’s counterparties, the concluded agreements provide for an additional section that reflects what information is confidential, not subject to disclosure, and what liability is provided for the party that violates such obligations. The non-disclosure may be signed as a separate document, may be part of the concluded agreement or be an annex to it. At the same time, it is important to remember that confidential information may become available to the counterparty at the stage of concluding an agreement, therefore, the legislator has provided for a rule in the Civil Code of the Russian Federation that says that if, during negotiations on concluding an agreement, a party receives information that is transferred to it by another party as confidential, it is obligated not to disclose this information or misuse it for its own purposes, regardless of whether the contract is concluded. In case of violation of this obligation, it must compensate the other party for losses caused as a result of the disclosure of confidential information or its use for its own purposes.
Regardless of what information is confidential for the company, it is important to draw up a local document of the organization, which clearly reflects what information is protected and what belongs to confidential information, how employees or counterparties get access to such information, and what consequences may be for them in the event of disclosure of such information. The local document must be drawn up in accordance with the requirements of Russian legislation, as well as the internal and external policies of the company. A clear regulation of what is confidential information will allow employees and counterparties to comply with the regime of confidential information and not disclose it to third parties. Not only the business reputation of the company, but many business processes may depend on the possible disclosure of confidential information.
To draw up a confidentiality agreement, you must:
- Analyze what is confidential information for a particular organization.
- Determine the list of positions and persons who will have access to such information.
- How access to confidential information will be provided.
- Determine the interaction within the framework of the protection of confidential information between employees, as well as with counterparties of the company.
- Provide liability for disclosure of information classified as confidential.
To prepare a detailed non-disclosure agreement, depending on the industry, an organization can be fully drafted by a qualified lawyer who can study all the internal and external processes of the organization, reflect them in the agreement and prescribe the entire necessary structure of the non-disclosure agreement. A qualified approach to drafting a confidentiality agreement will help entrepreneurs minimize the risks associated with disclosing information that is confidential to a particular organization.
- Advising clients on the conclusion of a confidentiality agreement
- Legal analysis of the client’s confidentiality agreements
- Preparing and drafting a confidentiality agreement
- Legal support of the client when concluding an NDA