West Virginia NDA Template
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A West Virginia NDA, or “nondisclosure agreement,” is a legal pact between two or more entities dictating what information should remain under wraps. They're often employed by startups and companies as a safety measure should employees, potential business collaborators, or any other parties attempt to reveal the company's sensitive information. These agreements are your guardians, shielding valuable aspects like your company's trade secrets, business plan or client database from being spilled into public domain or falling into competitors' hands.
Trade Secret Definition in West Virginia
“Trade secret” means information, including, but not limited to, a formula, pattern, compilation, program, device, method, technique or process, that:
(1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (West Virginia Uniform Trade Secrets Act § 47-22-1(d))
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Read on to learn more about West Virginia NDAs, including:
What's included in a West Virginia NDA?
Here are some key components that are typically included in a West Virginia Nondisclosure Agreement:
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Disclosing and Receiving Party
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Definition of Confidential Information
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NDA Purpose
- Use of Confidential Information
- Limited Access to Confidential Information
- Exclusions - What's not Covered
- Term of Confidentiality Period
1. Disclosing and Receiving Party
In this segment, the disclosing entity is the party unveiling the sensitive information. Oppositely, the receiving party is the one obtaining this confidential data. This is only relevant to unilateral NDAs – for mutual NDAs, both parties serve as disclosing and receiving entities. Also, observe the difference between "Company Name" and "individual." If you're an individual sharing or receiving the information, only your name is needed because you don't represent a company.
This nondisclosure agreement (this “Agreement”) is dated [Date] (the “Effective Date”) and is between [Company Name of Disclosing Party; e.g. “Max Studios, LLC”; if you do not have a formal legal entity, use your legal name, e.g. “Max Smith”], (the “Company”), and [Company Name of Receiving Party; if receiving party does not have a formal legal entity, use their legal name] (the “Recipient”).
2. Definition of Confidential Information
For your NDA, it's crucial to characterize what "confidential" means for your information. Picture an employer proclaiming, "Every word I share with you over the next two years is confidential." A year later, just before you leave, your employer mentions that they anticipate rain tomorrow. That evening, you mention the potential rain to a mutual friend. Has confidential information been disclosed? Certainly not!
A court wouldn't uphold such an indeterminate confidential clause. Conversely, an overly narrow definition could inadvertently lead to confidential data disclosure, which the receiving party can share freely.
Most West Virginia businesses use a standard definition similar to the template provided, but if you're unsure, consult our detailed guide about defining confidential data in your NDA.
“Confidential Information” means any information that is proprietary or unique to the Company and that is disclosed by the Company to the Recipient during the term of this Agreement, including the following: trade secret information; matters of a technical nature such as processes, devices, techniques, data and formulas, research subjects and results; marketing methods; plans and strategies; information about operations, products, services, revenues, expenses, profits, sales, key personnel, customers, suppliers, and pricing policies; and any information concerning the marketing and other business affairs and methods of the Company which is not readily available to the public. “Confidential Information” also includes information of others that (1) is disclosed under this Agreement, (2) the Company is obligated to protect from disclosure or restricted from using or both, and (3) that would constitute “Confidential Information” if the information belonged to the Company.
3. NDA Purpose
The template will illustrate – as does every NDA – that you need to specify the NDA's "objective." This could be something like, "to create a sample product for the disclosing party," or "to evaluate the possible business partnership between both parties." This objective is vital since it defines the reason why the receiver of the confidential information can utilize the data.
Suppose you want to employ a developer to assist with your website. You share your business strategies so they can understand the type of website required. In this situation, you'd want to narrow the objective to be related to the "development of..." and then describe the specific elements of the website the developer will work on.
Without this objective restriction, the developer could use the confidential data to establish a separate, similar business and profit from your confidential details.
However, in most cases, the language given in the template ("evaluating the parties' abilities to explore one or more business opportunities") is satisfactory. Here's a generic objective definition for reference.
“Purpose” means evaluating the parties’ capabilities in anticipation of pursuing one or more business opportunities.
4. Use of Confidential Information
The way you use your confidential data is linked to the objectives of creating an NDA. This clause essentially indicates that you'll only use the confidential data for its intended purpose. It might seem evident, but consider an alternate situation where someone is exploiting the confidential information. This clause ensures these sensitive talks remain private, safeguarding both parties from potential external disruption or detriment.
The Recipient shall use Confidential Information only for the Purpose. Unless otherwise agreed in writing, neither party shall disclose to a third party the fact that discussions or negotiations are taking place concerning the Purpose or any of the terms or other facts relating to the Purpose, including the status of negotiations between the parties.
5. Limited Access to Confidential Information
You're handing your data to the "Recipient," but what happens if the recipient is a company? Or if the recipient needs to consult their lawyer with some information? These types of situations are addressed in your NDA's "Restricted Access" section.
In the majority of cases, the language in the template is satisfactory. However, as a general rule, consider who should be privy to the information and restrict the data's use to those individuals. Whoever the recipient discloses the data to must also sign an NDA agreeing to the same conditions.
The Recipient shall protect the Confidential Information from unauthorized use and disclosure using the same degree of care that it uses with respect to its own information of like importance, but no less than a reasonable degree of care. The Recipient shall retain the Confidential Information in confidence and shall not disclose Confidential Information to any third party without the Company’s prior written consent. However, the Recipient may disclose the Confidential Information to employees, contractors, consultants, and authorized representatives of the Recipient who (1) require access to the information for the Purpose, (2) are informed by the Recipient of the Recipient’s obligations under this Agreement, and (3) are bound by contract or fiduciary duty to obligations of confidentiality and use restrictions with substantially similar function, purpose, scope, and effect to those of this Agreement and that are at least as protective of the Confidential Information as this Agreement.
6. Exclusions - What's not Covered
Your NDA's next section is “exclusions." These exclusions are needed to enhance the odds of a court upholding your NDA (if it ever reaches that extent). You only need to consider removing 4(a)(1) if you’ve already revealed confidential data to the receiver. Otherwise, in most West Virginia cases, these exclusions should suffice.
(a) This Agreement imposes no obligations upon the Recipient with respect to Confidential Information that: (1) was known to the Recipient before disclosure by the Company as evidenced by contemporaneous records; (2) has become publicly available through no fault of the Recipient; (3) is disclosed to the Recipient by a third party that has the right to make the disclosure to the Recipient and that does not have any obligation of confidentiality with respect to the Confidential Information; or (4) is disclosed by the Recipient with the Company’s prior written consent.
(b) If the Recipient is required by any governmental agency, court, or other judicial or regulatory body to provide any Confidential Information received under this Agreement, then the Recipient will not be deemed to be in violation of this Agreement for the disclosure if the Recipient promptly gives written notice to the Company of the requirement to provide the Confidential Information and cooperates with the Company so that the Company may contest the requirement to provide the Confidential Information. The Recipient may disclose only that portion of the Confidential Information that it is legally required to furnish.
7. Term of Confidentiality Period
This clause covers the term or timespan in which the NDA is effective. The agreement could cover a single transaction that lasts a few days, or you may require it to last indefinitely. The agreement's duration should align with the expected business relationship duration. Commonly, an NDA lasts longer than the exclusive transaction or relationship, especially ensuring the trade secret remains secret for its necessary life span.
You will likely want to include a term that explicitly states the trade secret's protection must continue, even when the business relationship or other agreement has concluded. If you're uncertain about the duration, the standard period is one to five years. Bear in mind, however, that the timespan must continue for as long as the information needs to stay confidential.
This Agreement will continue for a period of one year from the Effective Date unless: (1) terminated earlier by either party upon written notice to the other; (2) extended by the mutual written agreement of the parties; or (3) superseded by a subsequent written agreement that explicitly sets forth the obligations of the parties with respect to Confidential Information. With respect to business information, the Recipient’s obligations of confidentiality and non-use under this Agreement will expire three years from the termination of this Agreement. With respect to all information that constitutes a trade secret, the Recipient’s obligations of confidentiality and non-use under this Agreement will survive the termination of this Agreement for as long as such information remains a trade secret under applicable law.
What happens if I've already disclosed confidential information?
Have you found yourself in a situation where you've already shared confidential information? Don’t stress, we've got you covered. It might be necessary to slightly adjust the template in a few areas and we'll guide you through that process.
How do I protect my trade secret?
Remember, the key aim of NDAs is to guard your confidential data. But the confidential information in itself carries no value unless it forms part of the trade secret. It gains importance only when it qualifies as a trade secret.
If you're uncertain about what constitutes a trade secret or how to protect it, don't worry - consult our comprehensive guide on the subject. It's crucial to understand the dynamics of a trade secret to reinforce your protection under the law.