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What should be included in a non-disclosure agreement?
Introduction
A Non-Disclosure Agreement (NDA) is a legally binding contract that establishes a confidential relationship between parties. The party or parties signing the agreement agree that sensitive information they may obtain will not be made available to any others. In Kenya, NDAs are governed by various laws, including the Law of Contract Act (Cap 23), the Kenya Information and Communications Act, and the Data Protection Act, 2019. This document will outline the essential elements that should be included in a Non-Disclosure Agreement in Kenya.
Table of Contents
Definition of Confidential Information
Parties Involved
Purpose of the NDA
Obligations of the Receiving Party
Duration of the Agreement
Exclusions from Confidential Information
Permitted Disclosures
Return or Destruction of Information
Remedies for Breach
Governing Law and Jurisdiction
Miscellaneous Provisions
Conclusion
1. Definition of Confidential Information
Scope of Information: Clearly define what constitutes "Confidential Information." This can include business plans, customer lists, trade secrets, financial data, and other proprietary information.
Examples: Provide specific examples to avoid ambiguity.
Source: Law of Contract Act (Cap 23)
2. Parties Involved
Disclosing Party: Identify the party disclosing the confidential information.
Receiving Party: Identify the party receiving the confidential information.
Third Parties: Specify if third parties are involved and their roles.
Source: Law of Contract Act (Cap 23)
3. Purpose of the NDA
Objective: Clearly state the purpose for which the confidential information is being disclosed.
Use of Information: Specify how the information can and cannot be used.
Source: Law of Contract Act (Cap 23)
4. Obligations of the Receiving Party
Confidentiality: The receiving party must agree to keep the information confidential.
Non-Disclosure: The receiving party must agree not to disclose the information to third parties without prior written consent.
Security Measures: Outline the security measures that the receiving party must take to protect the information.
Source: Data Protection Act, 2019
5. Duration of the Agreement
Term: Specify the duration for which the NDA will be in effect.
Survival Clause: Include a clause stating that certain obligations (e.g., confidentiality) will survive the termination of the agreement.
Source: Law of Contract Act (Cap 23)
6. Exclusions from Confidential Information
Public Domain: Information that is already in the public domain.
Prior Knowledge: Information that the receiving party already knew before the disclosure.
Independent Development: Information independently developed by the receiving party.
Legal Requirement: Information required to be disclosed by law.
Source: Kenya Information and Communications Act
7. Permitted Disclosures
Authorized Personnel: Specify who within the receiving party's organization can access the information.
Legal Obligations: Conditions under which the information can be disclosed to comply with legal obligations.
Source: Data Protection Act, 2019
8. Return or Destruction of Information
Return: The receiving party must return all confidential information upon termination of the agreement.
Destruction: Alternatively, the receiving party may be required to destroy the information and provide a certificate of destruction.
Source: Data Protection Act, 2019
9. Remedies for Breach
Injunctive Relief: The disclosing party may seek injunctive relief to prevent further breaches.
Damages: The disclosing party may seek monetary damages for any losses incurred due to the breach.
Indemnification: The receiving party may be required to indemnify the disclosing party for any losses.
Source: Law of Contract Act (Cap 23)
10. Governing Law and Jurisdiction
Applicable Law: Specify that the agreement will be governed by the laws of Kenya.
Jurisdiction: Identify the courts that will have jurisdiction over any disputes arising from the agreement.
Source: Law of Contract Act (Cap 23)
11. Miscellaneous Provisions
Entire Agreement: State that the NDA constitutes the entire agreement between the parties.
Amendments: Specify that any amendments to the NDA must be in writing and signed by both parties.
Severability: Include a severability clause stating that if any provision is found to be unenforceable, the remaining provisions will still be in effect.
Waiver: Specify that any waiver of a breach of the NDA must be in writing and signed by the party waiving the breach.
Source: Law of Contract Act (Cap 23)
Conclusion
A well-drafted Non-Disclosure Agreement is crucial for protecting sensitive information in any business relationship. By including the elements outlined above, parties can ensure that their confidential information is adequately protected under Kenyan law. Always consult legal professionals for tailored advice and to ensure compliance with all relevant laws and regulations.
Sources:
Law of Contract Act (Cap 23)
Kenya Information and Communications Act
Data Protection Act, 2019
Answered by mwakili.com