We assume you're using the NDA from our book, Profit From Your Idea. (You can find similar nondisclosure agreements at our NDA website.) If you're pitching to a potential licensor, you can use the agreement as is. No changes are required as a result of the recently enacted Defend Trade Secrets Act (DTSA).
Employers must include notice. The DTSA does affect agreements with employees and independent contractors, however. Employers are now required to include a notice of immunity in any employee agreement "that governs the use of a trade secret or other confidential information." (The notice should also be included in agreements for independent contractors as well.) An employer who fails to include the provision and later sues under the DTSA is prohibited from recovering exemplary (double) damages and attorney fees from the employee or IC. The failure to include the provision does not prevent filing in federal court under the DTSA. A sample provision looks as follows:
Employers must include notice. The DTSA does affect agreements with employees and independent contractors, however. Employers are now required to include a notice of immunity in any employee agreement "that governs the use of a trade secret or other confidential information." (The notice should also be included in agreements for independent contractors as well.) An employer who fails to include the provision and later sues under the DTSA is prohibited from recovering exemplary (double) damages and attorney fees from the employee or IC. The failure to include the provision does not prevent filing in federal court under the DTSA. A sample provision looks as follows:
Notice of Immunity from Liability. An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (i) files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order.
