Confidentiality agreement means that both parties agree that written or oral information disclosed by one party to the other party shall not be disclosed to any third party. If a party who has the obligation of confidentiality violates the agreement and leaks confidential information to a third party, it will bear civil liability or even criminal liability.
A confidentiality agreement generally includes terms such as confidential content, responsible subject, confidentiality period, confidentiality obligation and liability for breach of contract. Confidentiality agreements can be divided into unilateral confidentiality agreements and bilateral confidentiality agreements. A unilateral confidentiality agreement refers to an agreement in which one party has a unilateral confidentiality obligation to the other party.
First, the form of confidentiality agreement
When signing a confidentiality agreement, both parties may stipulate the confidentiality clause in the Labor Contract Law or conclude a special confidentiality agreement. But no matter which way is adopted, it should be in legal written form, and the terms should be clear and unambiguous.
Second, the confidentiality agreement content
(1) Define the scope of confidential information
When the employer agrees on the confidential content, it is necessary to specify the object, scope, content and time limit that need to be kept confidential, and it is best to list all the contents that need to be kept confidential by enumerating, otherwise it will easily lead to litigation disputes due to unclear agreement. The scope and content of confidentiality have also changed in different enterprises and different periods of the same enterprise, and the employer should modify the content of confidentiality agreement in time.
(2) Defining the subject of confidentiality
The confidential subject of trade secrets is generally limited to workers in confidential positions. For confidential posts and technical posts, it is required not to disclose, donate, transfer, destroy or assist third parties to infringe on the company's business secrets. In addition to the above-mentioned confidential positions, workers who are not necessarily obligated to keep confidential should also be included in the scope of confidential subjects and bear the responsibility of confidentiality, knowing company secrets intentionally or unintentionally in their work. In addition, the family members and friends of workers who know business secrets should also have the same obligation to keep business secrets.
(three) agreed confidentiality period
The confidentiality period shall be clearly stipulated in the confidentiality agreement. Although the law stipulates that the employee's confidentiality obligation is not exempted due to the dissolution or termination of the labor contract, it is better to stipulate the starting and ending time of the confidentiality obligation to avoid unnecessary disputes because the business secrets have expired, been made public or been destroyed.
(4) Clarify the rights and obligations of both parties.
In the confidentiality agreement, how to use trade secrets, the ownership of job achievements involving trade secrets, the ways of keeping and destroying confidential documents, etc. It should be clearly agreed, and if there are special terms, it should be agreed by enumeration.
In addition, according to the provisions of the Labor Contract Law, liquidated damages cannot be directly set in the confidentiality agreement, and there is a risk that the agreed liquidated damages will be deemed invalid. However, this does not mean that the liability for breach of contract cannot be stipulated in the confidentiality agreement, but the content of compensation and the calculation method of compensation for breach of confidentiality obligation can be stipulated in the confidentiality agreement.
(5) Carefully stipulate the non-competition clause.
Although the non-competition clause is optional, it is undeniable that the non-competition clause is a powerful umbrella for trade secrets. It should be noted that the term and obligation of non-competition, the standard of economic compensation, the payment time of economic compensation, and the conditions for termination of the terms must be clearly agreed, otherwise the enterprise may fall into the danger of paying high economic compensation if it is not careful.
(VI) Determination of dispute jurisdiction
The dispute settlement institution can be stipulated in the confidentiality agreement, but the dispute settlement institution must be certain and unique. It is not allowed to agree on the choice of arbitration institutions and courts, nor is it allowed to agree on the choice of arbitration institutions or courts in places A and B, otherwise the clause will be invalid.
People's Republic of China (PRC) labor contract law
Article 23 The employer and the employee may agree in the labor contract to keep the employer's business secrets and confidential matters related to intellectual property rights.
For the workers who have the obligation of confidentiality, the employer may stipulate the non-competition clause with the workers in the labor contract or confidentiality agreement, and stipulate that after the labor contract is dissolved or terminated, the economic compensation will be paid to the workers on a monthly basis during the non-competition period. If the laborer violates the non-competition agreement, he shall pay liquidated damages to the employer in accordance with the agreement.
Article 24 The personnel who are restricted from competition are limited to the senior managers, senior technicians and other personnel with confidentiality obligations of the employing unit. The scope, area and time limit of non-competition shall be agreed by the employer and the employee, and the agreement on non-competition shall not violate the provisions of laws and regulations.
After the dissolution or termination of the labor contract, if the personnel specified in the preceding paragraph go to other employers that have a competitive relationship with their own units to produce or operate similar products or engage in similar businesses, or start their own businesses to produce or operate similar products or engage in similar businesses, the non-competition period shall not exceed two years.
The Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases (IV)
Article 6 If the parties agree on non-competition in the labor contract or confidentiality agreement, but do not agree to give economic compensation to the workers after the labor contract is dissolved or terminated, and the workers have fulfilled their obligations of non-competition and require the employer to pay economic compensation on a monthly basis at 30% of the average wages of the workers in the twelve months before the dissolution or termination of the labor contract, the people's court shall support it.
Where 30% of the average monthly salary specified in the preceding paragraph is lower than the minimum wage standard in the place where the labor contract is performed, it shall be paid according to the minimum wage standard in the place where the labor contract is performed.
Article 7 The parties agree on non-competition and economic compensation in the labor contract or confidentiality agreement. When the parties terminate the labor contract, unless otherwise agreed, if the employer requires the employee to perform the obligation of non-competition, or if the employee requires the employer to pay economic compensation after performing the obligation of non-competition, the people's court shall support it.
Article 8 The parties have agreed on non-competition and economic compensation in the labor contract or confidentiality agreement. After the labor contract is dissolved or terminated, if the economic compensation has not been paid for more than three months due to the employer's reasons, the people's court shall support it.
Article 9 During the period of non-competition, the people's court shall support the employer's request to terminate the non-competition agreement.
When the non-competition agreement is terminated, the people's court shall support the laborer's request to the employer to pay the laborer an additional three-month non-competition economic compensation.
Article 10 After the employee violates the non-competition agreement and pays the liquidated damages to the employer, the employer requires the employee to continue to perform the non-competition obligation as agreed, and the people's court shall support it.