A non-disclosure clause in your employment contract. Confidentiality agreement with an employee Trade secret non-proliferation agreement

The definition of a commercial secret is given in the Federal Law "On commercial secrets" dated July 29, 2004 No. 98-FZ.

In a competitive environment, unique knowledge and technology can provide a significant market advantage. Such information, as a rule, is a trade secret of the organization and is of value to it. The peculiarity of valuable information is that it is unknown to competitors, therefore, for effective protection, a trade secret regime must be introduced at the enterprise. To do this, it is necessary to develop a regulation on commercial secrets, strictly observe the procedure for the transfer and use of classified data, maintain registers of information constituting a commercial secret. You also need to put the stamp "Commercial secret" on material media (flash drives, folders, etc.).

How the agreement is made

To maintain secrecy, it is necessary to enter into a nondisclosure agreement with employees.

The current legislation does not impose any specific requirements on this document. Consequently, the parties themselves can establish not only its form, but also its content.

The non-disclosure clause can be expressed as:

consent of one of the parties not to disclose the information received;
a separate document signed by the parties;
section in the agreement (for example, in the manufacture of equipment, the parties may provide for a clause of the agreement on confidentiality and nondisclosure of information).

Confidentiality in the contract, sample

The parties can be named in different ways. But the most frequently used designations are "Disclosing Party" (for the one who transmits classified information) and "Receiving Party" (for whom, to whom the information is transmitted).

Who is the agreement with

For full control over the transmitted information, a nondisclosure agreement must be concluded with any person to whom they are provided. Such a deal can be concluded between organizations. This is done if the confidentiality of the contract is very important for both parties.

When hiring an employee, the employing organization signs a confidentiality agreement with the employee. After signing, the non-disclosure of this information will become an obligation for the employee.

Confidentiality and non-disclosure agreement, sample

Confidentiality agreement with an employee, sample

Important points to be reflected in the agreement

To date, legislation bypasses the issue of legal regulation of nondisclosure documents. Therefore, when drawing up, it is necessary to prescribe all the conditions in as much detail as possible.

The nondisclosure agreement must specify the following:

sides (if it is entity, then its name, TIN, PSRN, address must be indicated; for an individual - full name, registration address, passport data);
what information is considered secret and not subject to disclosure (you need to describe as specifically as possible what is classified);
the procedure for transferring data (personally signed in paper form, in in electronic format etc.);
liability for disclosure;
contract time.

The term of the confidentiality agreement may be stipulated by the parties. If there is no separate indication of this, the contract has no expiration date.

If the cooperation is long-term, and the materials are transferred repeatedly, then it is not enough to have a signed confidentiality agreement. It is necessary to draw up an act of acceptance and transfer of classified information each time. It describes the information that is transmitted in as much detail as possible.

What will be the consequences for violation

Violation of the confidentiality agreement can cause serious harm to the owner of classified information. A person who allowed the disclosure of data without the consent of their owner may be involved:

to disciplinary liability (this clause can only be applied to company employees);
civil liability (you can demand compensation for damages or payment of a fine if it is specified in the non-disclosure agreement);
administrative responsibility (occurs only for the disclosure of information, access to which is limited by law);
criminal liability (this clause does not apply in relations between ordinary companies and citizens).

But it must be remembered that if the contract does not specify the responsibility for the disclosure of classified information, then it will be very difficult to receive any compensation. That is why it is necessary to take a very responsible approach to the issue of protecting classified data.

Confidentiality and non-disclosure agreement, sample

Drawing up an obligation not to disclose trade secrets is required when an enterprise or organization wants to protect itself from the dissemination of any secret information about its activities. The obligation can be formalized as a separate document, as an annex to the employment contract, or included directly in its text.

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Why do you need a trade secret nondisclosure obligation

First of all, through this document, enterprises operating in the commercial sector (especially in the production sector) seek to protect themselves and their products from the encroachments of competitors. The obligation allows you to take from employees a promise not to spread trade secrets that have fallen into their hands, which most often in fact are

classified innovative ideas,
unpatented inventions,
information about the pricing policy and profit of the company,
data on concluded contracts and transactions,
further plans and strategy for the development of the enterprise.

It should be noted that companies, for their part, should also strive to ensure the safety of classified information by restricting access to them. Otherwise, if the case comes to litigation, it will be very difficult to identify the source of disclosure, and to prove the guilt of this or that employee is completely problematic.

Who draws up the document

A commitment is written on behalf of an employee of the firm, but, as a rule, its basis is developed

legal advisers of the enterprise (but there may be lawyers "from outside")
or directly the management.

In any case, the specialist who draws up the document form must have the necessary level of knowledge for its competent execution, and must also be familiar with the legislation of the Russian Federation in the field of civil, administrative and labor law. It should not be forgotten that the document is legally significant and, if necessary, can be claimed in court.

Who should sign the commitment

For obvious reasons, access to classified information is not given to all employees of enterprises and organizations. Typically, this information is owned by technicians, employees of financial departments, and those who deal with documents. It is these personnel representatives who most often write a commitment not to disclose trade secrets. But sometimes, companies require all employees to sign this document.

When a trade secret nondisclosure obligation is drawn up

In general, this paper is written directly upon employment. However, the option of writing a document during the period of work is not excluded, for example, when transferring to another position or in cases where such a document was previously absent from the list of mandatory signatures.

It must be remembered that before requiring an employee to sign a commitment, the employer (also against receipt) is obliged to acquaint him with complete list information related to trade secrets.

What happens if you violate the nondisclosure obligation

Violation by an employee of a signed document threatens him with the most different kinds punishments ranging from dismissal and compensation for material damage, up to criminal prosecution. It all depends on what kind of information was disclosed, as well as what damage the company suffered from its dissemination.

Rules for drawing up a document

There is no standard, uniform pattern of obligation, so that enterprises and organizations can write it in any form based on their needs. The company can also develop a document template, but in this case it must be approved in the accounting policy of the company. Regardless of which path is chosen, the commitment should include information about

company name,
date and place of its compilation,
employee personal data,
as well as the obligations themselves.

The volume of the document is not limited, therefore, one should take into account the fact that the more carefully the main text is developed, the more guarantees that it will not be violated, and even if there is, the employer will be able to prove this fact in court.

Rules for registration of an obligation not to disclose commercial secrets

The commitment can be written personally by the employee by hand (under the dictation of the responsible employee of the enterprise) or printed on a computer. It can be issued on a regular A4 sheet or on the company letterhead.

The only immutable rule: the document must contain the original signature of the employee.

It is issued in a single copy.

After drawing up and signing the obligation, it, along with other personal papers, is stored in the employee's personal file.

At the top in the middle, the name of the enterprise is written, in the line below - the place where the obligation was drawn up (city or other locality) and date.
Next, the name of the document is indicated.
In the main part, first fit into
- surname, name, patronymic and position of the employee,
- number and date of his employment contract,
- as well as the period during which he must keep the secrets of the enterprise after dismissal.
Next comes the text of the obligation itself - here you can enter any information that the employer considers it necessary to include.
Among other things, it is recommended to indicate that upon dismissal, the employee is obliged to hand over all the information in his hands to the responsible persons, and in case of violation of this obligation, he will be punished accordingly (strictly within the framework of the current law).
At the end, the document must be signed by an employee of the enterprise (indicating his position and decrypting the signature).

If you want to secure the company, reliably protect confidential information, conclude a non-disclosure agreement with the employee. How to compose it, we will tell in the article.

What documents should be in the organization on non-disclosure of commercial secrets

The definition of a commercial secret is given in Art. 139 of the Civil Code of the Russian Federation, part one. This is information that is not a secret of national importance, but is of commercial value due to the fact that it is not known to third parties. Such information is not freely available, and its owner takes certain actions to keep it secret.

Trade secret nondisclosure agreements are made with employees who have access to classified information. Possession of information constituting a commercial secret, as a rule, gives certain competitive advantages and, as a result, allows you to receive material benefits. Therefore, the owner of them is directly interested in the preservation and non-disclosure of commercial secrets.

For this purpose, enterprises that have their own production and organizational secrets establish a commercial secret regime. At the same time, they develop documents on its non-disclosure, regulating the work with such information, as well as establishing responsibility for violation of the prohibition on disclosure. More often than not, access and responsibility are stipulated in the employment contract as part of its basic terms.

Non-disclosure documents of trade secrets are optional. That is, if the company does not have such documents, then the labor inspectorate or other controlling body will not fine the company for this.

Non-disclosure documents of trade secrets are developed and approved by the company in the interests of the employer and on his initiative. The purpose of their development is to protect confidential information and establish responsibility for its disclosure for those officials who, by virtue of their official position, are admitted to such information.

Trade secret nondisclosure obligation

Non-disclosure documents of trade secrets are optional. That is, if the company does not have such documents, then the labor inspectorate or other controlling body will not fine the company for this. Non-disclosure documents of trade secrets are developed and approved by the company in the interests of the employer and on his initiative. The purpose of their development is to protect confidential information and establish responsibility for its disclosure for those officials who, by virtue of their official position, are admitted to such information.

Table. Non-disclosure documents of commercial secrets

Title of the document	A comment
	The document regulates the procedure for working with confidential information: a list of such information; the procedure for determining information constituting confidential information; measures taken by the company to protect such information; the procedure for access to information; a list of officials who have access to such information; the procedure for the operation and storage of such information; rights and obligations of the parties; responsibility for disclosure of confidential information Important! Employees who have access to trade secrets must be familiarized with the Regulations by signing
	The company should keep a record of the persons who are given access to confidential information. To do this, we recommend approving an order with a list of employees who are granted such access. When hiring new employees, then for each employee with admission you need to issue such an order
	An employee who gains access to confidential information must make a commitment not to disclose it. This obligation can be formalized in the following form: trade secret nondisclosure agreement; trade secret nondisclosure agreement; confidentiality obligation
	The employee's obligation to comply with the confidentiality regime should be spelled out in his employment contract. This condition in the contract can be written as follows: "The employee undertakes during the term employment contract and for _ (the term is indicated) __ years after its termination not to disclose the employer's trade secret protected by law, which became known to him in connection with the performance of his labor duties "
"Commercial secret" stamp	All tangible media with confidential information must be marked with this stamp indicating the name of the company and its location

How to draw up a trade secret nondisclosure agreement

In some cases, it is advisable to conclude a separate bilateral agreement with an employee admitted to information constituting a trade secret. A commercial secret agreement is drawn up on the basis of the Commercial Secret Regulations approved by the company. From this regulation, information is taken about specific confidential information, access to which is obtained by the employee with whom the agreement is signed.

Commercial secret regulation

Non-disclosure agreement of trade secrets sample

A sample nondisclosure agreement is in writing. The document establishes the obligations of the employee and the employer. It must include the condition that upon dismissal, the employee must hand over all media with confidential information and establish the duration of the nondisclosure agreement. As a rule, the contract is valid for the duration of the employment contract. The final part of the agreement contains the details and signatures of the parties.

Trade secret nondisclosure agreement (agreement) sample

Download sample

What conditions cannot be included in a non-disclosure agreement of commercial secrets

An agreement on non-disclosure of trade secrets with an employee is drawn up in a free form, therefore employers believe that it can specify any conditions aimed at restricting access and preserving trade secrets. Therefore, in practice, many errors can be found in such documents.

Table. What conditions cannot be included in a non-disclosure agreement of commercial secrets

What can not be specified innon-disclosure agreement	Clarification
Prohibition to work in other companies that are engaged in a similar type of activity	The employee independently decides in which company he works, and the employee cannot be prohibited from leaving to a competitor
A ban on part-time work in companies that are engaged in a similar type of activity	The employee has the right to perform other work in another company in his free time from the main job on the basis of a part-time employment contract, the employee chooses the field of activity of the second employer independently, this can also be done by competitors
A ban on running your own business with a similar type of activity	The employer does not have the right to control the employee's business
A ban on disclosure of the amount of wages: the purpose, timing and procedure for "> wages	The employer cannot prohibit the employee from disseminating their own personal data. For example, an employee has the right to submit an income statement to the bank for obtaining a loan or to confirm his income for a visa, an employee can also tell his friends and relatives about his income level, so the amount of his own income cannot be classified as confidential information.
Classification of information as confidential information that cannot be classified as such in accordance with the law	In Art. 5 of the Federal Law of July 29, 2004 N 98-FZ lists information that the employer cannot classify as confidential

The employer should be aware that according to the law, the concept of a trade secret does not include:

constituent documents and articles of association of the company;
documents confirming the right to engage in entrepreneurial activity;
information on the number of employees, their wages and working conditions;
information on the availability of job vacancies;
documents confirming the company's solvency, payment of taxes and mandatory payments;
information on the participation of company officials in joint-stock and other companies, organizations of any form of ownership in the field of entrepreneurship;
pollution information environment, violation of safe working conditions, antimonopoly legislation, rules and regulations for the sale of products that cause harm to the population, other violations of applicable laws.

The employer must remember that it is possible to hold an employee accountable for divulging secrets only if the documents establishing such a regime are correctly drawn up.

Limited Liability Company _______________ represented by the General Director __________________________, acting on the basis of the Charter, hereinafter referred to as the "Company", on the one hand, and ____________________________________________________________________________, hereinafter referred to as the "Employee", on the other hand, and together referred to as the "Parties" , have entered into this Agreement as follows:

1. SUBJECT OF THE AGREEMENT

1.1. In accordance with the Federal Law of July 29, 2004 No. 98-FZ "On commercial secrets", a commercial secret in this Agreement means any information that has actual or potential commercial value due to its unknown to third parties, to which there is no free access on a legal basis and to maintain the confidentiality of which the owner takes all possible measures.
Such information may include information about the structure of production, about the balance sheet, the state of bank accounts, the circulation of funds, about the level of income and debt obligations of the enterprise, about the methods of market research and sales by the enterprise, about domestic and foreign customers, clients, consumers, buyers and partners. the enterprise, as well as about its competitors that are not contained in open sources, about the calculation methods, the structure and level of prices for the company's products, about the goals, objectives and features of the technologies being developed and used.
1.2. A special part of the trade secret under this Agreement is:
- external and internal information about clients, i.e. Full name. employees and managers, addresses of companies, relevant developments,
- business processes of doing business

____________________________________________________________________
____________________________________________________________________

____________________________________________________________________
1.3. Any other information that is not specifically noted in paragraph 1 of clause 1.1 can also be considered a trade secret. of this Agreement, but falling within the general definition of a trade secret.
1.4. Information constituting a commercial secret cannot be transmitted orally, in writing, in the form of photographs, in electronic (including Email), graphic, by telephone, as well as in any other form.
Under this Agreement, the following information cannot constitute a commercial secret:
- which, prior to the conclusion of this Agreement, were publicly disclosed;
- which became publicly available during the validity of this Agreement, but without the fault of the respective Employee.

2. RIGHTS AND OBLIGATIONS OF THE PARTIES

2.1. All information constituting a commercial secret of the Company in accordance with this Agreement and which became known to the Employee as a result of work in the Company is confidential, and the Employee undertakes not to disclose it.
2.2. The employee undertakes to protect information constituting a commercial secret of the Company and which became known to him as a result of cooperation, from any encroachments and attempts to disclose them by third parties.
2.3. The employee undertakes to use the information obtained as a result of cooperation only for the purpose of this cooperation.
2.4. The employee undertakes, after the end of the cooperation, not to use the information obtained as a result of the work in order to compete with the other party.
2.5. All information constituting a commercial secret and received by the parties as a result of cooperation in the form of letters, reports, records, photographs, drawings, computer program listings, in tangible or intangible form, is the property of the Company and is used only within the framework and on the terms of this Agreement and the employment contract concluded with the Employee.
2.6. Under this Agreement, the Employee does not receive any rights to the intellectual property of the Company (trademark, invention or computer program).
2.7. At the end of the cooperation, the Employee undertakes to return all information received during his work in the Company in the manner of fulfilling this Agreement on tangible media, as well as their copies from the moment of the first request to the moment of issuing the work book.
2.8. In case of disclosure of information constituting a trade secret under this Agreement:
- an employment contract is terminated with the Employee under subparagraph c) of paragraph 6 of Article 81 of the Labor Code Russian Federation(one-time gross violation of labor duties by an employee - disclosure of secrets protected by law (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties);
- The employee is obliged to reimburse all losses incurred as a result of such disclosure, the amount of which is determined in accordance with the legislation of the Russian Federation;
- The employee has been warned that, in accordance with the legislation of the Russian Federation, the disclosure of information constituting a commercial secret may entail civil, administrative and criminal liability.

3. DURATION OF THE AGREEMENT

3.1. This Agreement enters into force from the moment of signing by the Parties of the Labor Agreement and is valid for 2 years after its termination.

4. SPECIAL CONDITIONS

4.1. All changes and additions to this Agreement are valid only if they are made in writing and signed by both Parties.
4.2. In the event of disputes and disagreements under this Agreement, the Parties will take all possible measures to resolve the dispute through negotiations.
In the event of insoluble contradictions between the Parties, the dispute is subject to final resolution in court in accordance with the legislation of the Russian Federation.
4.3. This agreement is made on two sheets in duplicate, one copy for each party. Both copies are equally valid.

5. ADDRESSES AND DETAILS OF THE PARTIES

Limited liability company

OOO _____________

_________________/

(signature) (full name)
m.

Employee:

Employee

_________________/

(signature) (full name)
m.

A non-disclosure agreement is signed by the parties entering into a commercial relationship in order to maintain the confidentiality of the information transmitted by one party to the other. The agreement assumes protection against the following risks:

a) gaining access to information by third parties

b) sale of information, incl. competitors

c) exclusion of the possibility of publishing data

As a rule, a nondisclosure agreement is signed at the same time or before the signing of the main agreement between the parties, which may be an agreement on the provision of some services, a sale and purchase agreement, etc. As part of the agreement, the recipient undertakes to use the confidential information received strictly for the purpose of implementing the main agreement.

The receiving party also undertakes to ensure the safety of information during the term of the contract and for three years after. In this case, the agreement may prescribe requirements for storing information, both for paper documents and for electronic documents(specific hardware and software systems).

Functions and tasks of the agreement

Unfortunately, the agreement is not a 100% guarantee of non-disclosure of information by the receiving party, however, a company that discloses confidential information has the opportunity to prove the recipient's involvement in the dissemination of data and recover from him the losses incurred by the company, incl. losses associated with lost profits. Nevertheless, practice shows that it is extremely difficult to prove the guilt of the recipient of the information in court. In our opinion, this type of agreement in Russia is more of an educational (precautionary) nature than actually protects the interests of the disclosing party.

A separate type of non-disclosure agreement is a non-disclosure agreement of personal data. The concepts of commercial secret and personal data should be separated, since the protection of personal data is regulated by federal law No. 152-FZ of July 27, 2006, and the protection of commercial secrets is regulated by federal law No. 98-FZ of July 29, 2004.