If a clause is not included in an NOA, the parties may imply that the NDA will be in effect indefinitely. A NOA without a clause is more common in an agreement where a relationship is in progress. Assuming that the NDA has a termination clause, all contractual obligations, as soon as a party terminates the termination of the contract, will expire on the termination date, unless the NDA contains a survival clause. However, circumstances may vary depending on whether the information is considered a business secret when the Ontario Court of Appeal has ruled that disclosure of a company`s business secrets may be considered a commercial restriction. Note that after the termination date, the receiving party is no longer bound to confidentiality if information is received after the termination date. This provision applies regardless of whether the confidentiality clause continues to apply to confidential information received prior to the termination date. When it comes to ensuring that your non-disclosure is maintained in a legal challenge, the scope of the agreement is extremely important in helping the courts determine whether the terms of your confidentiality agreement are appropriate or not. One solution to this problem is to have a shared confidentiality obligation when the obligations related to trade secrets apply for an indeterminate period, but the obligations relating to all other confidential information apply only for a limited period of time. This should be generally applicable and an appropriate effort to preserve the protection of trade secrets. The commercial argument is that large companies want a clear delineation of their confidentiality obligations. They do not want to have to follow confidential information indefinitely, as it can be logistically difficult in a large organization. Here`s a question David didn`t ask: what`s the best way to tell the length of a confidentiality agreement? Other jurisdictions also impose limits on the timing of the application of confidentiality obligations. Thus, the Australian High Court has decided that confidentiality agreements with unlimited trust obligations are not applicable without it being clear that the trust obligations no longer apply to information that is made public.
NOA agreements do not work in China, but NNN agreements do first if you indicate the duration in the commitment, suggesting that the agreement itself is indefinite. I prefer to make it clear that a confidentiality agreement ends at some point, so there is no question that a company should ever include a specific confidentiality agreement in a list of contracts in which it is involved when it is no longer bound by the sole commitment of the agreement. In conclusion, the two main factors you need to consider when thinking about the length of your non-disclosure are the type of information you want to protect and the jurisdiction you will use for your agreement. An NDA may be terminated by the provider of confidential information if the confidentiality agreement provides for it. The contract can also be terminated by mutual agreement. Normally, a recipient of the information cannot report a confidentiality agreement because it would nullify its purpose. If you wish to prevent an employee or other third party from competing with your company for the duration of the confidentiality agreement or for a specified period after the termination of the employment relationship or the end of the agreement, it is possible to protect your interests by including a non-compete clause.