I'm not afraid of your NDA
This is a loud and scary abbreviation of three
not decent letters. Want to participate in the tender, get a job, you need to get data - you slip this piece of paper, they say, sign first, or you found fools without the NDA to tell you something. In most cases, you will not learn anything top secret or commercially important, but the procedure for signing the NDA has become a mystery of consecration, which the parties do not really ponder over the meaning.
This is just as you will inevitably receive a demand together with the constituent documents to provide an extract from the USRLE not older than 30 days. Although everything is available online, everyone prints this statement from the Internet, assures it and passes it to a counterpart who does not even look at it, because everything is on the Internet. Well, you understand, in short, the domestic love of the sacraments.
Under Russian law, in order for the NDA to work, it is necessary to comply with the requirements of this law, that is, to establish a regime of confidential information. And what for this it is necessary to make? For this we go to point 1 of Art. 10 of the Law on Commercial Secrets:
to determine the list (!) of information constituting a trade secret;
establish the procedure for handling such information and the procedure for monitoring compliance with this procedure;
restrict access to such information (including physically);
To keep records of all persons who have access to such information or to whom it was transferred;
make in contracts with employees points that oblige to comply with all the above and familiarize them with all these orders and orders of order;
The exception is [/b]
IP without employees, respectively, should not do this, plus it does not apply to pp. 1 and ? which logically differently looks like some kind of schizophrenia.
finally sign the NDA with the counterparty;
before transferring the information to the label "Commercial secret" on material carriers or documents and indicating the owner of the information;
Case study [/b]
As an example of the passage from the decision in the case N A40-83833 /15-15-646 : " Neither the Treaty nor any other documents relating to the dispute under consideration have a neck or marking" Commercial secret "and are not subject to commercial secrets.
Thus, the Contractor did not violate the terms of the Confidentiality Agreement of March ? 201? the Customer's demands for recovery of the penalty in the specified part are illegal and unreasonable "
Only then transfer this information.
The text of the law is [/b]
1. Measures to protect the confidentiality of information taken by its holder must include:
1) definition of the list of information constituting a commercial secret;
2) restricting access to information constituting a commercial secret by establishing the procedure for handling this information and monitoring compliance with this procedure;
3) registration of persons who have access to information constituting a commercial secret and (or) persons to whom such information was provided or transmitted;
4) regulation of relations on the use of information constituting a trade secret, employees on the basis of labor contracts and contractors on the basis of civil law contracts;
5) drawing on material carriers containing information constituting a commercial secret or including in the data elements of documents containing such information the "Business Secret" label with the indication of the owner of such information (for legal entities - full name and location, for individual entrepreneurs - surname, name, patronymic of a citizen who is an individual entrepreneur, and place of residence).
And as we say paragraph 2 of Art. 10 of the Trade Secrets Law, if you have not met at least one of the above conditions, then your NDA is anything, but not the NDA.
Figures you [/b]
2. The regime of commercial secrecy shall be deemed to be established after the holder of the information constituting a commercial secret has taken the measures specified in subsection (1) of this section.
In fact, this is not bureaucratic nit-picking. If you carefully read through the requirements, then this is essentially the minimum standard of proof. Without any of these points, is it definitely possible to establish that the information is really important and it left without your knowledge? It's complicated.
As with commercial secret, 3-r335353.
Case No. A33-28905 /2016 :
"The claimant did not establish a commercial secret regime, because, as was established by the courts, the list of information constituting a trade secret was not determined between the parties to the agreement dated ??? No. U-26121? the procedure for handling this information and monitoring its compliance is not established, the registration of persons who received access to confidential information was not carried out, the text of the agreement of ??? N U-261212 and the originals of the drawings do not contain the "Business secret" stamp indicating the details of the owner of such information, and consequently, the plaintiff did not The evidence in the case materials that reliably confirms the fact that UNIMET has posted information on the Internet containing the trade secret of the company "NPC of Magnetic Hydrodynamics", the Court of Intellectual Rights considers that the courts came to a justified conclusion that these circumstances are grounds for refusal to satisfy the claim ".
Why would I even comply with the law?
Good question. For your own good. Because the regime of confidential information gives you a wide range of whips:
Disciplinary responsibility of the employee up to dismissal.
Excerpt from the Labor Code [/b]
The employment contract may be terminated by the employer in the following cases: disclosure of a secret protected by law (state, commercial, official or otherwise) that has become known to a worker in connection with the performance of his or her employment duties, including the disclosure of the personal data of another employee (sub- 6 part 1 of article 81 of the LC RF)
Administrative responsibility under Art. ??? of the Administrative Code of the Russian Federation (mockery with penny fines).
Text of the article [/b]
Disclosure of information, access to which is restricted by federal law (unless disclosure of such information entails criminal liability), by a person who has access to such information in connection with the performance of official or professional duties, with the exception of cases provided for by Part 1 of Article ??? of this Code ,
Attracts imposing of the administrative penalty on citizens at the rate from five hundred to one thousand rubles; on officials - from four thousand to five thousand rubles
Administrative responsibility under Art. ??? of the Administrative Code of the Russian Federation for unfair competition. Here everything is much more serious, but things are much more complicated.
Text of the article [/b]
1. Unfair competition, if these actions do not contain a criminal offense, with the exception of cases provided for by Article 14.3 of this Code and part 2 of this article, - entails the imposition of an administrative fine on officials in the amount of twelve thousand to twenty thousand rubles; on legal entities - from one hundred thousand to five hundred thousand rubles.
Criminal liability. Joker. The most important amulet. Part 2 of Art. 183 of the Criminal Code.
Excerpt from the Criminal Code [/b]
2. Illegal disclosure or use of information constituting commercial, tax or bank secrecy without the consent of their owner by a person to whom it was entrusted or known for service or work is punishable by a fine of up to one million rubles or in the amount of wages or other income of a convicted person for a period of up to two years, with deprivation of the right to hold certain positions or engage in certain activities for up to three years, or correctional labor for up to two years, or forced otami for up to three years, or imprisonment for the same period.
Well, yes, contractual liability and losses are all, of course. Including from state agencies that disclosed information you provided on their request.
Such bonuses exist because the correctly established procedure simplifies the procedure for proving the violation of your rights. Indeed, if it is possible to establish a route for passing information more or less reliably, then questions arise to the other side. It takes much less work on your part.
What now, to me my NDA podter not to be protected?
No, but now we can approach the question, but what exactly is the NDA in the domestic space, if you do not take those rare exceptions, when you finally introduced the notorious regime of confidential information?
As we found out, the parties can conclude any contract. Let it be a fake NDA. What does the standard NDA look like? « Blah blah blah, I undertake not to disclose all the received, blah blah blah, I will be responsible in accordance with the law ". Well, OK. What responsibility? Since the Law on Commercial Secrets does not work in our case, we turn to the Civil Code. The only thing that is there is a loss (paragraph 2 of Article 15 of the Civil Code of the Russian Federation).
From the Civil Code about losses [/b]
2. Losses are understood as expenses that a person whose right has been violated, produced or will have to do to restore the violated right, loss or damage to his property (real damage), as well as unearned income that this person would have received under normal conditions of civil turnover, if his right was not violated (loss of profit).
With them an ambush. Cases of loss are one of the most difficult. Because they are difficult to prove. You need to provide convincing evidence that:
Losses exist and they arose precisely from the disclosure of information.
Justify the amount of losses from disclosure. Not necessarily accurately, but you must at least try to make calculations not out of your mind.
Evidence of the guilt of precisely such a "divulgent", that is, that the information flowed away from this side. In short, the guilt of the culprit.
Causal relationship between the actions of the culprit and the resulting losses.
In each of these points there is a whole forest of ambushes and palisades. Accordingly, we are now talking more about naked theory, because without the correct regime of information protection (to hell with the law, we are now talking about the actual factual complexity we are talking about) it is very difficult to present and substantiate to the public a chain - "I handed it over and he disclosed it." Although in the sphere of this it is easier in some cases. For example, the given access to software on the side is easier to track.
Excerpt from the court decision [/b]
Case No. A56-92673 /2016 :
During the validity period of the processing contract, the respondent posted on his website in the information and telecommunications network Internet tscard.ru the active button "Try it. Work with your personal cabinet in a demo mode ", which gives unlimited access to the private office of the defendant created in the plaintiff's system.
This fact is confirmed by the notarial protocol of examination of evidence (form of series 78 АА N 948379? т.1? л.д.41-66).
Paragraph 4.4. the parties determined that the party that disclosed confidential information or otherwise violated the agreement, undertakes to pay to the other party a fine of 40?000 rubles.
Referring to the fact that the access of an undefined circle of persons to his personal cabinet in the system violates the terms of the confidentiality agreement, the plaintiff applied to the court with a demand to recover from the defendant a fine in the amount of 40?000 rubles.
In order to establish the fact that the respondent provided access to the private cabinet to an unlimited number of persons, the court appointed an expert examination, which was entrusted to the expert Simonov IA. (Russian expert fund "Tehiko").
According to the conclusion of the expert N 9619 /C (v.1? l5-58), the defendant did not make any changes to the authorization of the user [email protected] in his personal accounte Systems of LLC "VIAKARD", consisting of a database, interface and computer program; independently created an account [email protected] and granted access to the system of LLC "VIACADD" without the need to enter a password for an unlimited number of persons; analysis of information about the user's actions in the personal account showed the presence of 633 authorization records that were made using this site
So all the same podter not to defend yourself?
No, some advanced lawyers are putting extra responsibility in the NDA. For example, a fine of 1 million euros. No, I'm not joking. For some reason I have never met adequate fines. After all, in every case, the information is of colossal, phenomenal importance, so we do not agree with less than a million. Although in this amount it will not be enforced in life. If you are at least some kind of activity in court to manifest, then surely you will cut it many times.
Well, OK. What helps fine? The fact that this is a partial replacement of losses!
Let us turn to the original source. P. 1 of Art. 330 of the Civil Code of the Russian Federation tells us: " A penalty amount (penalty, penalty) is a sum of money determined by law or by agreement, which the debtor is obliged to pay to the creditor in case of non-fulfillment or improper performance of the obligation, in particular in case of delay in execution of ". But the most important thing (!) " Upon demand for payment of a penalty, the creditor It is not obliged to prove the infliction of losses to him ".
Everything, a victory? Not until the end. Return to the list of four items necessary for proving in case of losses. Reread it? Now, attention! In the event of a penalty, you will need to prove only one point - about the guilt of the culprit. That is, only the fact of violation of the agreement. Yes, it's still very hard, but it's four times lighter!
Is there anything else you can think of?
Can! But this is a creative legal work. True, I have not seen it in NDA texts
That is, from the list of losses, all four items are deleted. You just need to prove the fact of the occurrence of the circumstance that you stipulated. For example, the secrets of production have gone for a walk on the Internet and the contract no longer makes sense to you, since there is no longer any advantage of having secret information.
But this is generally a rather slippery topic, because of the contract and the relations of the parties it should clearly be seen that it is interesting to both parties and normal for market relations. This will need to be justified to the judge, why the other party decided to assume the risks of the onset of such circumstances. Otherwise, in the event of a dispute, there is a good chance that you will run into the fact that such a contract will be recognized as an insurance contract, and hence the agreement on compensation for losses will be declared invalid. So use at your own risk. No judicial practice at all.
Definition of the insurance contract [/b]
Under the property insurance contract, one party (the insurer) undertakes to reimburse to the other party (the insured) or to another person in whose favor the contract is concluded (the beneficiary) caused by the contract (the insurance premium) upon the occurrence of the event provided for in the contract (the insured event) events losses in the insured property or losses in connection with other property interests of the insured (pay insurance compensation) within the amount specified in the contract (insurance contract mmm) (item 1 of item 929 of the Civil Code of the Russian Federation).
Well, no one prevents you from combining in one agreement and a penalty, and compensation for losses. This is not considered a double responsibility, because of liability there is only a penalty. Reimbursement of losses is simply a payment that is not related to a breach of obligations by the party to the agreement.
And I heard how the money was collected, and the regime was not according to the rules of
Easily. The client's lawyer wrote beautiful phrases about confidentiality in the contract. The contractor's lawyer checked them. Nobody heard about regimes. The judge also did not understand much, because the parties did not dispute the very procedure for protecting information. That's sorted out by what is. I suspect that of the few disputes that still exist in courts on the topic of disclosure, most are based on an incorrect regime. But no one disputed, so everyone is happy with everything. Moreover, there are a lot of refusals to collect damages for the NDA.
And if there is no agreement at all, then everything is possible?
Actually, no. Although it will be difficult to convince the judge. But in general this is justified as follows.
The parties to the obligation must act in good faith.
Excerpt from the Civil Code of the Russian Federation [/b]
In establishing, implementing and protecting civil rights and in the performance of civil duties, participants in civil legal relations must act in good faith (clause 3 of Article 1 of the Civil Code of the Russian Federation).
If you still acted badly, then you are forbidden to benefit from it.
Excerpt from the Civil Code of the Russian Federation [/b]
No one has the right to take advantage of his unlawful or unfair conduct (Clause ? Article 1 of the Civil Code of the Russian Federation).
You must take into account the interests of the other party, even after the termination of the contract.
Excerpt from the Civil Code of the Russian Federation [/b]
When establishing, fulfilling the obligation and after its termination, the parties are obliged to act in good faith, taking into account the rights and legitimate interests of each other, mutually providing the necessary assistance to achieve the objective of the obligation, and also providing each other with the necessary information (clause 3 of Article 307 of the Civil Code of the Russian Federation).
Even if you received such information during the negotiations, and the contract was never concluded, then you should not disclose it.
About the negotiations [/b]
If, during negotiations on the conclusion of a contract, a party receives information that is communicated to it by the other party as confidential, it is obliged not to disclose this information and not use it improperly for its purposes, regardless of whether a contract is concluded. If this duty is violated, it must compensate the other party for losses caused as a result of disclosure of confidential information or use of it for its own purposes (clause ? Article 434.1 of the Civil Code of the Russian Federation).
And in some cases the law says that certain information received by the party to the obligation, even without a regime of commercial secrecy, is protected. But the responsibility, again, is a loss or a fine established in the contract.
About the contract of the contract [/b]
If the party, through the performance of its obligations under the contract of work, has received information from the other party about new decisions and technical knowledge, including those not protected by law, as well as information regarding which the holder has established a commercial secret regime, the party receiving such information is not entitled to communicate it to third parties without the consent of the other party (paragraph 1 of Article 727 of the Civil Code of the Russian Federation).
I was given a secret with the stamp, but how do I know that they did the rest?
From nowhere. It is necessary to carry out. But if there is a dispute, then necessarily put in court the question of whether the regime of commercial secret was introduced. This fact will already have to be proved by the party that declared the violation of the NDA. And if the conditions of the Law on Commercial Secrets are not met, then the dispute turns into a full-fledged proof of losses. I already wrote about the complexity of such cases above.
At the same time, remember that the standard endings of the letter, describing which top secret information in this letter is contained, are usually not a transfer of confidential information, but a "letter to the village of grandfather." Because, as you remember, the regime of commercial secrecy requires tracking who and to whom transferred specific information. And if the contract did not specify this post and who its owner, the Law on commercial secrets will be difficult to apply.
And I do work with foreigners, what then?
I'll tell you so. I do not know. It's not a fact that an agreement with a foreign counterparty also means foreign law. There are entire rules for determining the applicable law (called conflict of laws). But if all the same the right is foreign, then how regulated by them the NDA can say only the lawyer of the country concerned. Other laws, other jurisprudence, other traditions. I can only advise you to break the point that the Russian law is applied to the terms of the agreement.
And in what form should the agreement be?
Requirements are not particularly. You can include the item in the contract. You can enter into a separate agreement. And both before and after signing the agreement. And in some cases, the law says that simply in the contract you can list information that you consider confidential, and it is already protected.
About R & D [/b]
Unless otherwise provided for by contracts for the performance of research, development and technological work, the parties are required to ensure the confidentiality of information relating to the subject matter of the contract, the course of its implementation and the results obtained. The amount of information recognized as confidential is defined in the contract (clause ? Article 771 of the Civil Code of the Russian Federation).
So what will I do for NDA?
To be honest, chances are that you will run into responsibility for the disclosure of confidential information a bit. This is a fairly rare topic in our courts. As you already understood, if there are no penalties, then few people will want to contact the losses. But remember that if the office has introduced a regime of commercial secrecy, then the Damocles sword of criminal law hangs over you. Well, from a commercial point of view, there are more risks caused by termination of the contract due to disclosure. And yet, let's not forget about ethics and business reputation. This is something, but it should cost!
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