SECRETS OF SUCCESSFUL NON-DISCLOSURE AGREEMENT (NDA)

Information is one of the most valuable assets today, and its unlawful disclosure can cause significant damages to financial position and reputation of a person. Thus conclusion of non-disclosure agreement (NDA) becomes more common recently. The agreement prohibits one party to use or distribute certain information received from the other party illegally, in other words the party who has access to confidential information undertakes to protect it as his/her own, or at least implement all necessary measures to preserve and protect it. Further it goes about what should not be forgotten during the NDA conclusion and with lack of which provisions NDA will not be able to protect you properly.

First of all, it is worth mentioning that the non-disclosure agreement can be concluded in any area (for example, when providing services in the field of information, during copyright creation, or employment contract conclusion, etc.), with different range of people – counterparties, employees, customers and others. Such agreement can be unilateral or mutual, i.e. one or both parties can undertake an obligation not to disclose information, depending on the above mentioned circumstances in every particular situation. NDA can be a part of a main contract (e.g. contract on services provision) or be implemented as a separate agreement. Another possible option is to include some general provisions into the main contract and conclude a separate detailed non-disclosure agreement.

One of the key elements of the NDA is determination of confidential information which shall not be disclosed, to whom it belongs and from which moment, in what way a person could have got an access to it, and provision of some specific examples of confidential information in order to make it more detailed. Retrospective aspect should be taken into consideration, as confidential information could have been transferred to the counterparty before the NDA conclusion. Indication of some exceptions when information is not deemed confidential is admissible (for example, if such information has already been in public domain or was lawfully and independently obtained by the other party before the NDA conclusion).
The agreement should also contain provisions that specify which use of confidential information is permitted (e.g., exclusively for the purpose of services provision, prescribed by the relevant contract between the parties), and the conditions under which the use of confidential information may be permitted (e.g., at the request of public authorities or with a counterparty’s prior written consent). NDA should also stipulate sanctions in the event confidential information is implemented in any other way. They can differentiate depending on the importance of unlawfully disclosed information, as well as on the individual’s income. However, such sanctions have to be specified.
Determination of the term during which parties (or one of the parties) are obliged not to disclose information is of the same importance. Usually it is not limited to the period of the main contract validity and lasts for some time after its termination. This period is determined by considering the expected period for which such confidentiality is really necessary, as society, technologies, science are constantly developing and confidential information may eventually lose its relevance and not require further legal protection. In addition, it is recommended to distinguish confidential information and trade secret, as in some cases trade secret can require significantly longer legal protection. Coca-Cola secret ingredients are one of the most famous examples of trade secret.
Requirement to return confidential information is an important provision of the non-disclosure agreement, which means the return of all carriers containing confidential information, and/or destruction of confidential information held in private electronic resources or in other carriers of another party. Such actions may be envisaged after termination of the main contract.
Moreover, the non-disclosure agreement may prescribe so-called “template” provisions related to dispute settlement. They can provide, for example, that all disputes between the parties should be resolved by negotiations. In case no agreement is reached the parties retain the right to apply to the appropriate court or to arbitration.
Considering that Ukrainian legislation provides freedom of contract, which extends to the definition of its terms, NDA may contain a lot of other provisions which aim to protect one of the most valuable resources – information (including non-compete and/or   non-solicitation clauses). Please contact us to create an NDA template which will meet all your specific requirements and correspond your needs and interests.]]>

SECRETS OF SUCCESSFUL NON-DISCLOSURE AGREEMENT (NDA)
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A new law on virtual assets: the picture is formed, but without details. On September 8, 2021, the Verkhovna Rada has finally adopted the long-awaited law "On Virtual Assets", which clarified many ambiguous points. This is especially true for the status of cryptocurrency and the rules of its circulation in the country. Let`s take a closer look at novelties. An ambiguous term Let's start with what the legislator actually means by "virtual assets". There are the following features:  they are an intangible good (cannot be represented on tangible media)  fall under the list of objects of civil rights (that is, they can be owned and be disposed of)  represent an electronic form of a set of data (essentially, they are blocks of information put in order);  the existence and circulation of assets are due to software tools (specific electronic environment). From these features we can draw the following conclusion: virtual assets are not limited to cryptocurrency. Digital currency is part of the concept, but other instruments, such as tokens, NFTs, or even in-game items, fall under the definition. Actually, the actual existence of most digital products, having a certain value, is due to the software environment (ecosystem), either it is blockchain technology, a trading platform, or an online game server. It should be noted that the attempt to define virtual assets was already made in the adopted Law of Ukraine in counteracting money laundering. In this act, they understand it as digital means of payment, which goes against the new definition. As a result, there are now two different explanations for virtual assets, which causes significant confusion not only in regulation but also in interpretation. It is definitely necessary to expect clarifications from competent state bodies. Let's return to the new law. Its application covers legal relations in which the "Ukrainian element" is present:  provider or recipient of services represented in Ukraine;  an agreement according to which the turnover of virtual assets is carried out in accordance with Ukrainian legislation;  the acquirer of assets (or both counterparties) is a resident(s) of Ukraine. The law also introduces an interesting division of all virtual assets into two groups: secured and unsecured. Here again, there is a problem of interpretation. The first category includes products exchanged for (state) currency, the second category includes instruments that can be exchanged only for other digital assets. There is an alternative opinion: that the turnover of secured assets is supported by real goods (money or other property), while unsecured ones are not supported by anything. The latter interpretation is the most credible, as the new law stipulates that virtual assets are NOT means of payment. Moreover, they cannot be exchanged for real goods, be they property, services or money. This significantly narrows the potential for the use of virtual assets not only for commercial but also for civilian purposes. About obligatory licensing The new law states that in some cases, the use of virtual assets will require licensing. The 4 types of activity are mentioned:  storage and management of virtual assets (or its` keys)  servicing of exchange operations with virtual assets (both for other analogues and for real goods);  translation of digital assets;  any intermediary services. A list is quite impressive, but there are some important exclusions:  if your service works with cryptocurrency wallet (it means users can dispose of accumulations into cryptocurrency independently);  If your service works on smart contracts or decentralized protocol, based on which internal transfers are performed. As to intermediary services, everything is more compicated. Actually, any mediation is based on the public share offering. That is why it is subject to licensing. How to get a license? A company that wishes on legal grounds to engage in virtual assets must satisfy legislative requirements. The key role is played by the minimum amount of the statutory capital, which equals 1,19 million hryvnyas (for non-residents it is 5,95 million hryvnyas) in case of storage and administration. For other types of activity (trading, translation and mediation services) the minimum size of the statutory capital amounts to 595 thousand hryvnyas (for non-residents is 2,98 million hryvnyas). The order of the registration of license:  to compose an application and prepare documents.  to pay state fee (68-136 thousand hryvnyas for residents and 340-680 thousand hryvnyas is for non-residents).  to pend review of the request (30 days).  to get a license. The duration of the license is 1 year. No norms about the continuation of legal force of permission are set (we are expecting amendments or explanations from the Ministry of Digital transformation of Ukraine). Notably that non-residents must pay a far greater sum, than domestic companies. The Ukrainian legislator obviously encourages an internal market, getting rid of a strong foreign presence (that, in fact, coincide with modern politics of the state on the whole). Together with an application, the following documents must be prepared: The access code to the copy of the Statute of the company (or the foundation agreement) kept in an electronic file in the database of the Unified State Register of Enterprises and Organizations (USREO);  Funding sources of the statutory capital (where the money are taken from);  confirmation of the actual injection of money;  information about beneficiaries (special attention must be paid to business reputation);  the information about the director and founders;  the check about payment of state fee;  the internal regulations, in accordance with which ones, the privacy policy rules are regulated. In the terms of volume of necessary documentation of licensing is very alike with complete registration of legal entity. It is understood that the state wants the severe adjusting of activity of organizations that will engage in virtual assets. Is it already possible to get a license? The adoption of the law by the parliament is a significant step forward in adjusting and legal market of virtual assets creation in Ukraine. However, the new rules haven`t come into effect yet - their term of introduction depends on making amendments in the Internal Revenue Code. It is yet unknown, when a legislator will decide to enter the renewed system of taxation for such assets. Being "IT-hub" and territory, where cryptocurrency enjoys large popularity, the question of taxes must be decided maximally safely. Despite the presence of obvious gaps in interpretation, a new law on virtual assets gives the official narrative of what takes place and that, how the legal relationships related to cryptocurrency will be regulated. It is to be hoped that in the nearest time the Ministry of digital information will give out the detailed explanations concerning debatable norms.
20/01/2022
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