Washington NDA Template
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A Washington NDA, or “nondisclosure agreement,” is a legal armor that binds two or more parties in a pact of silence. It's like a secret-keeper's playbook, guiding what information you and the other party must shield from public view. Trending amongst startups and established businesses, NDAs serve as a safeguard, fortifying your business against any unwarranted reveal of private information by employees, potential partners, and the like.
Trade Secret Definition in Washington
“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process that:
(a) 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
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (Washington Uniform Trade Secrets Act § 19.108.010(4))
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Read on to learn more about Washington NDAs, including:
What's included in a Washington NDA?
Here are some key components that are typically included in a Washington 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
Think of this NDA section as setting the stage: you'll introduce the "star" (the disclosing party) who shares confidential information and the "co-star" (the receiving party) who learns these secrets. This part applies mainly for unilateral NDAs, as mutual NDAs see both parties having equal billing. Now, when it comes to naming your character, you can either use "Company Name" or your personal name if you're an individual involved in the deal.
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
To construct a strong NDA, clearly lay out the boundaries. Define what's confidential so that all parties are in the know. Imagine your boss claiming everything they tell you for the next two years is confidential, yet not all information shared holds that weight or importance.
A court would likely dismiss an excessively broad clause. So, avoid under-defining or over-defining confidentiality. While most businesses use a standard definition found in templates, read up on further guidance and examples in our in-depth post on defining confidential information 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
When it comes to your NDA, indeed, purpose matters. Whether you aim to craft a prototype or explore business opportunities between two parties, stating the NDA purpose helps clarify the acceptable use of confidential info.
Imagine hiring a web developer who gets access to your business plans to create the perfect website. Specify the purpose of the exchange, so your developer doesn't repurpose your ideas for their side hustle. A generic purpose definition works most of the time, but it’s essential to ensure it fits your specific situation.
“Purpose” means evaluating the parties’ capabilities in anticipation of pursuing one or more business opportunities.
4. Use of Confidential Information
The NDA's purpose and the use of confidential information go hand-in-hand. This section is your friendly reminder that shared confidential information should only serve the intended purpose. It may seem obvious, but outlining this provision helps protect both parties from potential outsiders who may wish to exploit vulnerabilities.
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
The "Recipient" in your NDA may receive your precious intel, but what happens if that recipient is an entity? Or if they need advice from a legal expert? Address these concerns in the "Limited Access" section of your NDA.
In most cases, use the standard template language. However, keep in mind who needs access to the information and limit its use accordingly. Ensure those who receive the information also sign an NDA that echoes the original terms.
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
Adding exclusions in your NDA optimizes its chances of standing firm in court if the need arises. Review template exclusions and consider removing 4(a)(1) only if you've already disclosed confidential information. In most cases, the default exclusions in the template 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
Just like your favorite Netflix series, your NDA has its own running time. This could be the time frame of a specific transaction, lasting a few days, or an indefinite length that covers an ongoing relationship. Typically, an NDA's duration extends past the dealings it initially covers, maintaining its secrecy as long as needed.
It's advisable to incorporate a clause asserting that the trade secret stays protected even after finalizing business or contractual relationships. Generally, the average running time varies from one to five years, but ultimately, the duration should align with your confidentiality needs.
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?
In case you've already disclosed confidential information, don't worry! You'll need a few tweaks to the template, and you'll be all set. Read here to check how you can tweak the information. Remember, life, like legal documents, often require adjustments, and that's perfectly fine.
How do I protect my trade secret?
The primary concern behind having NDAs is protecting your confidential information. However, the value lies not just in the confidential information alone, but how it figures into your trade secret. To be valuable, it must qualify as a trade secret.
In case you're unsure about what constitutes a trade secret, how to determine if your information qualifies, or how to adequately protect it, refer to our guide for a deeper dive into this topic.