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Confidentiality Agreements: Essential Protection for Your Business Information

Learn how confidentiality agreements protect your business secrets, intellectual property, and competitive advantage. Essential guidance for small business owners, freelancers, and professional service providers.

Introduction

A Confidentiality Agreement (also known as a Non-Disclosure Agreement or NDA) is a legally binding contract that establishes a confidential relationship between parties. When you sign this document, the party or parties receiving sensitive information agree to keep it private and secure, and not share it with others without authorization. For small business owners, freelancers, and professional service providers, these agreements are crucial tools that protect your proprietary information, client data, business methods, and intellectual property from unauthorized disclosure or misuse. Whether you're sharing sensitive information with employees, contractors, potential business partners, or clients, a properly drafted confidentiality agreement helps safeguard your competitive advantage and establishes clear legal recourse if confidential information is misused.

Key Things to Know

  1. 1

    One-way vs. mutual agreements: Consider whether you need a one-way agreement (where only one party is disclosing confidential information) or a mutual agreement (where both parties exchange confidential information). Choose the appropriate type for your situation.

  2. 2

    Specificity matters: Courts are more likely to enforce agreements that clearly define what information is confidential rather than overly broad agreements claiming everything is confidential.

  3. 3

    Regular review is essential: Confidentiality agreements should be reviewed periodically to ensure they remain relevant to your current business practices and comply with changing laws.

  4. 4

    Different relationships require different terms: The confidentiality provisions appropriate for employees may differ from those for vendors, potential investors, or business partners. Consider customizing your agreements accordingly.

  5. 5

    Confidentiality doesn't replace other protections: While important, confidentiality agreements work best as part of a comprehensive strategy that includes proper information security practices, limited access to sensitive data, and other intellectual property protections like patents, trademarks, and copyrights when applicable.

  6. 6

    International considerations: If your business operates internationally, be aware that confidentiality laws vary significantly between countries. You may need country-specific agreements or clauses addressing international aspects of information protection.

Key Decisions

Freelance Professionals

Small Business Owners

Professional Service Providers

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CONFIDENTIALITY AGREEMENT (NON-DISCLOSURE AGREEMENT)

This Confidentiality Agreement (the "Agreement") is entered into as of ________________, [YEAR] (the "Effective Date")

BETWEEN:

[PARTY NAME], a [corporation/limited liability company/partnership/sole proprietorship] organized and existing under the laws of [STATE/JURISDICTION], with its principal place of business at [ADDRESS] (hereinafter referred to as the "[DISCLOSING PARTY/RECEIVING PARTY/PARTY A]"),

AND:

[PARTY NAME], a [corporation/limited liability company/partnership/sole proprietorship] organized and existing under the laws of [STATE/JURISDICTION], with its principal place of business at [ADDRESS] (hereinafter referred to as the "[DISCLOSING PARTY/RECEIVING PARTY/PARTY B]").

([PARTY A] and [PARTY B] may be individually referred to as a "Party" and collectively as the "Parties")

RECITALS:

WHEREAS, the Parties wish to explore a potential business relationship concerning [DESCRIBE PURPOSE OF RELATIONSHIP] (the "Purpose");

WHEREAS, in connection with the Purpose, each Party may disclose to the other Party certain confidential and proprietary information; and

WHEREAS, the Parties wish to establish terms governing the disclosure, use, and protection of such confidential and proprietary information.

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. NATURE OF AGREEMENT

1.1 Type of Agreement. This Agreement shall be considered a [MUTUAL/UNILATERAL] confidentiality agreement. [IF MUTUAL: Both Parties may disclose Confidential Information to each other and both Parties shall be bound by the confidentiality obligations set forth herein with respect to the Confidential Information received.] [IF UNILATERAL: Only [DISCLOSING PARTY] will be disclosing Confidential Information, and only [RECEIVING PARTY] will be bound by the confidentiality obligations set forth herein.]

2. DEFINITION OF CONFIDENTIAL INFORMATION

2.1 Definition. For purposes of this Agreement, "Confidential Information" means any and all non-public information, in whatever form or medium, disclosed or made available by one Party (the "Disclosing Party") to the other Party (the "Receiving Party"), either directly or indirectly, including but not limited to:

(a) Trade secrets, proprietary information, know-how, technical data, and research and development information;

(b) Business plans, business strategies, marketing plans, customer lists, supplier information, pricing information, financial information, and projections;

(c) Product designs, specifications, formulations, compositions, processes, algorithms, software programs, source code, object code, and documentation;

(d) Inventions, discoveries, improvements, devices, methods, techniques, and procedures;

(e) Personnel information and human resources data;

(f) Any other information that would reasonably be considered non-public, confidential, or proprietary given the nature of the information and the circumstances of disclosure; and

(g) Any notes, analyses, compilations, studies, summaries, and other material prepared by the Receiving Party to the extent containing, based on, or derived from any of the foregoing.

2.2 Marking Requirements. Information shall be considered Confidential Information if:

(a) It is clearly marked as "Confidential," "Proprietary," or with a similar designation at the time of disclosure if disclosed in tangible form;

(b) It is identified as confidential or proprietary at the time of disclosure if disclosed orally or visually, and such designation is confirmed in writing by the Disclosing Party within fifteen (15) business days after such disclosure, summarizing the Confidential Information disclosed; or

(c) A reasonable person under the circumstances would understand the information to be confidential or proprietary, regardless of whether it is marked or designated as such.

2.3 Exclusions. Confidential Information shall not include information that:

(a) Was in the Receiving Party's possession prior to receipt from the Disclosing Party, as evidenced by the Receiving Party's written records, and was not subject to any confidentiality obligation;

(b) Is or becomes publicly available through no fault, action, or inaction of the Receiving Party;

(c) Is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement;

(d) Is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information, as evidenced by the Receiving Party's written records; or

(e) Is released from confidential treatment by the Disclosing Party's written authorization.

2.4 Burden of Proof. The Receiving Party shall bear the burden of proving that any information falls within the exclusions set forth in Section 2.3 by clear and convincing documentary evidence that predates the Disclosing Party's disclosure of the information in question.

3. OBLIGATIONS REGARDING CONFIDENTIAL INFORMATION

3.1 Duty of Confidentiality. The Receiving Party shall:

(a) Hold all Confidential Information in strict confidence and take all reasonable precautions to protect such Confidential Information;

(b) Not disclose any Confidential Information to any person or entity other than as expressly permitted by this Agreement;

(c) Protect the Confidential Information using at least the same degree of care that it uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care;

(d) Not use, copy, modify, reverse engineer, decompile, disassemble, or create derivative works based on the Confidential Information except as expressly authorized by this Agreement; and

(e) Promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of Confidential Information and take reasonable steps to prevent further unauthorized use or disclosure.

3.2 Permitted Use. The Receiving Party may use the Confidential Information solely for the Purpose specified in this Agreement and for no other purpose whatsoever without the prior written consent of the Disclosing Party.

3.3 Permitted Disclosures. The Receiving Party may disclose Confidential Information only to:

(a) Its directors, officers, employees, agents, representatives, advisors, and contractors who: (i) Have a need to know such Confidential Information for the Purpose; (ii) Have been informed of the confidential nature of the information and the Receiving Party's obligations under this Agreement; and (iii) Are bound by written confidentiality obligations no less restrictive than those contained in this Agreement;

(b) Other persons or entities as expressly authorized in writing by the Disclosing Party.

3.4 Responsibility for Third Parties. The Receiving Party shall be responsible for any breach of this Agreement by any person or entity to whom it discloses Confidential Information pursuant to Section 3.3, and shall take all reasonable measures to ensure that Confidential Information is not disclosed or used in breach of this Agreement.

3.5 No Implied Rights. Nothing in this Agreement shall be construed as:

(a) Granting any rights, by license or otherwise, to any Confidential Information, except as expressly set forth herein;

(b) Granting any rights under any patents, trademarks, copyrights, trade secrets, or other intellectual property;

(c) Creating any obligation to disclose any information; or

(d) Creating any agency, partnership, joint venture, or other business relationship between the Parties.

3.6 No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR NON-INFRINGEMENT. The Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information.

4. TERM AND TERMINATION

4.1 Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect for a period of [NUMBER] years thereafter, unless earlier terminated as provided herein (the "Term").

4.2 Survival of Obligations. Notwithstanding the expiration or termination of this Agreement, the confidentiality obligations set forth herein shall:

(a) With respect to trade secrets, continue for as long as such information remains a trade secret under applicable law; and

(b) With respect to all other Confidential Information, continue for a period of [NUMBER] years from the date of disclosure.

4.3 Termination. This Agreement may be terminated:

(a) By mutual written agreement of the Parties;

(b) By either Party upon thirty (30) days' written notice to the other Party; or

(c) By the Disclosing Party immediately upon written notice if the Receiving Party breaches any provision of this Agreement.

4.4 Effect of Termination. Upon termination or expiration of this Agreement, or at any time upon the Disclosing Party's written request, the Receiving Party shall promptly:

(a) Cease all use of the Disclosing Party's Confidential Information;

(b) Return to the Disclosing Party or destroy, at the Disclosing Party's option, all materials containing Confidential Information, including all copies, notes, summaries, reports, drawings, manuals, recordings, memoranda, and other tangible manifestations thereof, whether prepared by the Disclosing Party or the Receiving Party; and

(c) If requested by the Disclosing Party, provide a written certification, executed by an officer of the Receiving Party, that all Confidential Information has been returned or destroyed in accordance with this Section.

4.5 Retention of Electronic Copies. Notwithstanding Section 4.4, the Receiving Party may retain Confidential Information to the extent it is:

(a) Stored on the Receiving Party's information technology backup, disaster recovery, or archival systems that are subject to routine and automated deletion; or

(b) Required to be maintained by applicable law, regulation, or the Receiving Party's document retention policies, provided that such retained Confidential Information shall remain subject to the confidentiality obligations of this Agreement for as long as it is retained.

5. REMEDIES

5.1 Equitable Relief. The Parties acknowledge that a breach of this Agreement may cause irreparable harm to the Disclosing Party for which monetary damages would be inadequate. Accordingly, in the event of any threatened or actual breach of this Agreement, the Disclosing Party shall be entitled to seek injunctive relief, specific performance, and any other equitable remedies available, without the need to post a bond or other security, in addition to any other remedies available at law or in equity.

5.2 Liquidated Damages. In addition to any other remedies available, in the event of a material breach of this Agreement by the Receiving Party, the Receiving Party shall pay to the Disclosing Party, as liquidated damages and not as a penalty, the sum of [AMOUNT] dollars ($[AMOUNT]), which the Parties agree represents a reasonable estimate of the damages that would be suffered by the Disclosing Party as a result of such breach. The Parties acknowledge that the actual damages resulting from a breach of this Agreement would be difficult to ascertain with precision and that this liquidated damages provision is a reasonable estimate of such damages.

5.3 Indemnification. The Receiving Party shall indemnify, defend, and hold harmless the Disclosing Party and its directors, officers, employees, agents, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, that arise out of or result from the Receiving Party's breach of this Agreement.

5.4 Cumulative Remedies. All remedies provided in this Agreement are cumulative and in addition to any other remedies available at law or in equity.

6. LEGAL COMPLIANCE

6.1 Required Disclosures. If the Receiving Party is required to disclose Confidential Information pursuant to a court order, subpoena, governmental authority, law, regulation, or other legal process, the Receiving Party shall:

(a) Promptly notify the Disclosing Party in writing of such requirement prior to disclosure, if legally permitted to do so;

(b) Cooperate with the Disclosing Party, at the Disclosing Party's expense, in seeking a protective order or other appropriate remedy;

(c) Disclose only that portion of the Confidential Information that is legally required to be disclosed, as advised by counsel; and

(d) Use reasonable efforts to ensure that any Confidential Information so disclosed is treated confidentially by the recipient.

6.2 Industry-Specific Regulations. The Parties acknowledge that certain Confidential Information may be subject to specific laws and regulations, including but not limited to:

(a) Health Insurance Portability and Accountability Act (HIPAA) and related regulations for protected health information;

(b) General Data Protection Regulation (GDPR) and other data protection laws for personal data;

(c) Financial industry regulations for financial information; and

(d) Export control laws and regulations.

6.3 Compliance Obligations. Each Party shall comply with all applicable laws, regulations, and industry standards in its performance under this Agreement, including those identified in Section 6.2, and shall implement appropriate safeguards as required by such laws and regulations.

7. INTELLECTUAL PROPERTY

7.1 Ownership. All Confidential Information shall remain the exclusive property of the Disclosing Party. The disclosure of Confidential Information shall not transfer any ownership rights or other interest in the Confidential Information to the Receiving Party.

7.2 No License. No license, express or implied, by estoppel or otherwise, to any patent, trademark, copyright, trade secret, or other intellectual property right is granted by this Agreement or by any disclosure of Confidential Information hereunder, except for the limited right to use such Confidential Information solely for the Purpose as expressly provided in this Agreement.

7.3 Residual Knowledge. Notwithstanding anything to the contrary in this Agreement, the Receiving Party may use Residual Knowledge for any purpose, including use in the development, manufacture, promotion, sale, and maintenance of its products and services, provided that this right to Residual Knowledge does not represent a license under any patents, copyrights, or other intellectual property rights of the Disclosing Party. "Residual Knowledge" means information that is retained in the unaided memories of the Receiving Party's employees or representatives who have had access to the Confidential Information. Memory is considered unaided if the employee or representative has not intentionally memorized the Confidential Information for the purpose of retaining and subsequently using or disclosing it.

7.4 Feedback. If the Receiving Party provides any suggestions, comments, or feedback to the Disclosing Party regarding the Disclosing Party's Confidential Information ("Feedback"), the Disclosing Party shall be free to use and incorporate such Feedback into its products and services without restriction or payment, provided that such use does not disclose the Receiving Party's Confidential Information in violation of this Agreement.

8. MISCELLANEOUS PROVISIONS

8.1 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of [STATE], without giving effect to any choice of law or conflict of law provisions. The Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in [COUNTY], [STATE] for any action arising out of or relating to this Agreement.

8.2 Dispute Resolution.

(a) Negotiation. The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement.

(b) Mediation. If the dispute has not been resolved by negotiation within forty-five (45) days after delivery of the initial notice of negotiation, or if the Parties failed to meet within twenty (20) days, the Parties shall endeavor to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association.

(c) Arbitration. Any dispute not resolved through negotiation or mediation shall be finally resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall be conducted by a single arbitrator with expertise in confidentiality and trade secret matters. The arbitration shall take place in [CITY], [STATE]. The award rendered by the arbitrator shall be final and binding on the Parties, and judgment on the award may be entered in any court having jurisdiction thereof.

(d) Costs. Each Party shall bear its own costs in the dispute resolution process, except that the Parties shall share equally the fees and expenses of the mediator and arbitrator, and the costs of the facilities used for the mediation and arbitration.

8.3 Assignment and Successors. Neither Party may assign or transfer this Agreement or any rights or obligations hereunder, in whole or in part, without the prior written consent of the other Party, except that either Party may assign this Agreement without consent to a successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this Section shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.

8.4 Severability. If any provision of this Agreement, or any portion thereof, is held to be invalid, illegal, void, or unenforceable by any court or tribunal of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect to the maximum extent permitted by law. The Parties agree that any such invalid, illegal, void, or unenforceable provision shall be modified and limited in its effect to the extent necessary to cause it to be enforceable, or if such modification is not possible, shall be deemed severed from this Agreement. In such event, the Parties shall negotiate in good faith to replace any invalid, illegal, void, or unenforceable provision with a valid, legal, and enforceable provision that corresponds as closely as possible to the Parties' original intent and economic expectations. The invalidity or unenforceability of any provision in one jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.

8.5 Amendments and Waivers. No modification of or amendment to this Agreement shall be effective unless in a writing signed by authorized representatives of both Parties. No waiver of any rights under this Agreement shall be effective unless in writing signed by the Party waiving such rights. The waiver by either Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision.

8.6 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, proposals, negotiations, representations, and communications, whether oral or written, relating to such subject matter. The Parties acknowledge and agree that they have not relied on any statement, promise, or representation not expressly contained in this Agreement.

8.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Electronic signatures and signatures transmitted via PDF shall be deemed original signatures.

8.8 Notices. All notices required or permitted under this Agreement shall be in writing and shall be delivered personally, sent by certified mail (return receipt requested), or sent by a nationally recognized overnight courier service to the addresses set forth below or to such other address as either Party may specify in writing:

If to [PARTY A]: [NAME] [ADDRESS] [CITY, STATE, ZIP] Attention: [CONTACT PERSON] Email: [EMAIL]

If to [PARTY B]: [NAME] [ADDRESS] [CITY, STATE, ZIP] Attention: [CONTACT PERSON] Email: [EMAIL]

Notices shall be deemed given upon receipt if delivered personally, three (3) business days after mailing if sent by certified mail, or one (1) business day after deposit with a nationally recognized overnight courier service.

8.9 Relationship of Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture, employment, or agency relationship between the Parties. Neither Party shall have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.

8.10 Force Majeure. Neither Party shall be liable for any failure or delay in performance under this Agreement due to causes beyond its reasonable control, including but not limited to acts of God, fire, flood, earthquake, labor disputes, utility failures, war, terrorism, or governmental actions.

8.11 Interpretation. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

8.12 Survival. The provisions of this Agreement that by their nature should survive termination or expiration of this Agreement shall survive, including but not limited to Sections 2, 3, 4.2, 4.4, 4.5, 5, 6, 7, and 8.

9. SPECIAL PROVISIONS

9.1 Non-Solicitation. During the Term of this Agreement and for a period of [NUMBER] years thereafter, neither Party shall, directly or indirectly, solicit, recruit, or induce any employee, consultant, contractor, customer, or supplier of the other Party to terminate their employment or other relationship with such Party without the prior written consent of the other Party. General advertisements or job postings not specifically directed at the other Party's employees shall not be deemed a violation of this provision.

9.2 Non-Competition. During the Term of this Agreement and for a period of [NUMBER] years thereafter, the Receiving Party shall not, directly or indirectly, engage in any business that competes with the Disclosing Party in any geographic area where the Disclosing Party conducts business, to the extent permitted by applicable law. The Parties acknowledge that this restriction is reasonable in scope, duration, and geographic area and is necessary to protect the Disclosing Party's legitimate business interests and Confidential Information.

9.3 Reverse Engineering. The Receiving Party shall not reverse engineer, disassemble, decompile, or otherwise attempt to derive the composition, structure, construction, or underlying ideas, algorithms, or source code of any products, prototypes, software, or other tangible objects that embody the Disclosing Party's Confidential Information, except as expressly permitted by applicable law.

9.4 Export Control. The Parties acknowledge that the Confidential Information may be subject to U.S. export control laws and regulations. The Receiving Party shall not export, re-export, or transfer, directly or indirectly, any Confidential Information in violation of applicable export control laws and regulations.

9.5 Data Privacy. To the extent that Confidential Information includes personal data or personally identifiable information subject to data protection laws, the Receiving Party shall:

(a) Process such information only in accordance with the Disclosing Party's instructions and as necessary for the Purpose;

(b) Implement appropriate technical and organizational measures to protect such information;

(c) Assist the Disclosing Party in responding to requests from data subjects; and

(d) Comply with all applicable data protection laws and regulations.

IN WITNESS WHEREOF, the Parties have executed this Confidentiality Agreement as of the Effective Date.

[PARTY A]

By: ________________________________

Name: _____________________________

Title: ______________________________

Date: ______________________________

[PARTY B]

By: ________________________________

Name: _____________________________

Title: ______________________________

Date: ______________________________

Texas Requirements for Confidentiality Agreement

Definition of Confidential Information (Texas Uniform Trade Secrets Act, Tex. Civ. Prac. & Rem. Code § 134A.001 et seq.)

Clearly defines what constitutes confidential information under Texas law, including trade secrets as defined by the Texas Uniform Trade Secrets Act (TUTSA). The definition should be comprehensive but specific enough to be enforceable.

Exclusions from Confidential Information (Texas Uniform Trade Secrets Act, Tex. Civ. Prac. & Rem. Code § 134A.002)

Specifies information not considered confidential, such as publicly available information, information independently developed, or information rightfully received from third parties without restriction.

Defend Trade Secrets Act Compliance (Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b))

Includes required notice of immunity for confidential disclosure of trade secrets to government or in court filings under the federal Defend Trade Secrets Act.

Obligations of Receiving Party (Texas Uniform Trade Secrets Act, Tex. Civ. Prac. & Rem. Code § 134A.002(6))

Outlines the specific duties of the party receiving confidential information, including reasonable measures to protect information consistent with Texas trade secret protection standards.

Term and Termination (Texas common law on restrictive covenants; Light v. Centel Cellular Co., 883 S.W.2d 642 (Tex. 1994))

Specifies the duration of confidentiality obligations, which must be reasonable in scope and duration to be enforceable under Texas law.

Remedies for Breach (Texas Uniform Trade Secrets Act, Tex. Civ. Prac. & Rem. Code § 134A.003)

Details available remedies including injunctive relief, which is specifically authorized under the Texas Uniform Trade Secrets Act for misappropriation of trade secrets.

Attorney's Fees Provision (Texas Uniform Trade Secrets Act, Tex. Civ. Prac. & Rem. Code § 134A.005)

Provides for recovery of attorney's fees by the prevailing party in any action to enforce the agreement, which is permitted under Texas law for trade secret misappropriation.

Governing Law and Venue (Texas Civil Practice and Remedies Code § 15.002)

Establishes Texas law as governing the agreement and designates a specific Texas county for venue of any disputes, which is enforceable under Texas law.

Electronic Communications Privacy Compliance (Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq.)

Ensures compliance with federal laws regarding electronic communications and stored data that may contain confidential information.

Return or Destruction of Confidential Information (Texas Business and Commerce Code § 521.052 (for personal identifying information))

Requires the receiving party to return or destroy all confidential information upon termination of the agreement or upon request, with certification of compliance.

Data Privacy Compliance (Texas Identity Theft Enforcement and Protection Act, Tex. Bus. & Com. Code § 521.001 et seq.)

Ensures compliance with Texas data breach notification laws if the confidential information includes personal identifying information of Texas residents.

Non-Solicitation Provisions (Tex. Bus. & Com. Code § 15.50; Marsh USA Inc. v. Cook, 354 S.W.3d 764 (Tex. 2011))

If included, must be reasonable in scope, geography, and duration to be enforceable under Texas law governing restrictive covenants.

Assignment and Delegation (Texas Business and Commerce Code § 2.210 (by analogy))

Addresses whether rights and obligations under the agreement may be assigned or delegated to third parties, which affects the scope of protection.

Severability (Texas common law on contract interpretation; In re Poly-America, L.P., 262 S.W.3d 337 (Tex. 2008))

Provides that if any provision is found unenforceable, the remainder of the agreement remains in effect, consistent with Texas contract interpretation principles.

Intellectual Property Rights Preservation (Copyright Act, 17 U.S.C. § 101 et seq.; Patent Act, 35 U.S.C. § 1 et seq.; Texas Uniform Trade Secrets Act)

Clarifies that the agreement does not transfer ownership of any intellectual property rights, consistent with federal and Texas intellectual property laws.

Health Information Privacy Compliance (Health Insurance Portability and Accountability Act, 45 CFR Parts 160 and 164)

If applicable, ensures compliance with HIPAA for protected health information that may be included in confidential information.

Financial Information Protection (Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq.)

If applicable, ensures compliance with federal laws regarding protection of financial information that may be included in confidential information.

Disclosure Required by Law (Texas Rules of Civil Procedure Rule 176 (for subpoenas); Texas Government Code § 552.110 (for public information requests))

Addresses procedures when disclosure is required by law, court order, or governmental authority, including notice requirements to allow the disclosing party to seek protection.

Integration and Modification (Texas common law on contract interpretation; Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323 (Tex. 2011))

States that the agreement constitutes the entire understanding between the parties regarding confidentiality and can only be modified in writing, consistent with Texas contract law.

Waiver Provisions (Texas common law on waiver; Shields Ltd. P'ship v. TNH, Ltd., 620 S.W.3d 400 (Tex. 2021))

Clarifies that failure to enforce any provision does not constitute waiver of rights, consistent with Texas contract interpretation principles.

Frequently Asked Questions

A confidentiality agreement can protect virtually any non-public information that provides business value, including: trade secrets, proprietary processes and methods, client lists and information, financial data, business strategies and plans, product formulas and designs, software code, marketing strategies, unpublished intellectual property, and research and development information. The agreement should clearly define what specific information is considered confidential, as courts generally won't enforce overly broad or vague confidentiality provisions.

You should consider using a confidentiality agreement whenever you share sensitive business information with another party. Common situations include: hiring employees or contractors who will have access to proprietary information, discussing potential business partnerships or collaborations, pitching your business ideas to potential investors, outsourcing work to third-party vendors, sharing client information with subcontractors, and during the early stages of a business sale or acquisition. For service providers and freelancers, having clients sign an NDA can also protect sensitive information you learn about their businesses during your work relationship.

An effective confidentiality agreement should include: clear definition of what information is considered confidential, specific permitted uses of the confidential information, the duration of confidentiality obligations (time period), exclusions from confidential information (such as publicly available information), obligations of the receiving party to protect the information, consequences for breach of the agreement, return or destruction requirements for confidential materials when the relationship ends, and appropriate remedies like injunctive relief in case of violation. Depending on your business needs, you may also want to include non-solicitation provisions and jurisdiction clauses specifying which state's laws govern the agreement.

The duration of a confidentiality agreement should be reasonable and proportional to the nature of the information being protected. For most business information, terms ranging from 2-5 years are common and generally enforceable. However, for true trade secrets or highly sensitive proprietary information, you may want to specify that confidentiality obligations continue indefinitely or as long as the information remains a trade secret under applicable law. Be aware that courts may be reluctant to enforce extremely long or indefinite confidentiality periods for information that doesn't qualify as a trade secret, so the duration should be carefully considered based on your specific circumstances.

While template confidentiality agreements are widely available, having an attorney review or draft your agreement is highly recommended, especially for protecting valuable business information. A generic template may not address your specific business needs or comply with the particular laws of your state. An experienced business attorney can customize the agreement to your situation, ensure it's legally enforceable, and help you avoid common pitfalls that could render the agreement ineffective. The cost of legal assistance upfront is typically much less than dealing with the consequences of confidential information being misused due to an inadequate agreement.

If you believe someone has breached your confidentiality agreement, you should: document all evidence of the breach, send a formal cease and desist letter, and consult with an attorney about your options. Enforcement typically involves filing a lawsuit seeking remedies such as an injunction (court order to stop the disclosure), monetary damages for losses suffered, and potentially attorney's fees if your agreement provides for them. The agreement should specifically mention that monetary damages alone may be insufficient and that you're entitled to seek injunctive relief, as this can help you obtain a court order quickly to prevent further disclosure. Having clear evidence of both the agreement and the breach will be crucial to successful enforcement.

Yes, confidentiality agreements have several important limitations. They cannot protect: information that was already public knowledge, information the receiving party already knew before disclosure, information independently developed by the receiving party without using your confidential information, information received legally from a third party, or information required to be disclosed by law or court order. Additionally, confidentiality agreements cannot be used to conceal illegal activities or prevent someone from reporting violations of law to government agencies. Some states also limit the enforceability of confidentiality provisions in certain contexts, particularly regarding employee mobility and whistleblower protections.