Make a South Dakota Non-Disclosure Agreement

South Dakota State Laws

South Dakota’s Uniform Trade Secrets Act, SD Codified L §§ 37-29-1 through 37-29-11 , regulates the creation and use of NDAs to protect trade secrets. The South Dakota Uniform Trade Secrets Act explains how businesses can protect their trade secrets . It also explains how trade secrets law works together with other laws within the state.

To get the most protection for business secrets, use this contract along with a South Dakota non-compete agreement .

Definition of “Trade Secrets”

South Dakota non-disclosure agreements play an important role in the business environment by protecting information known within the NDA as “trade secrets.” South Dakota’s Uniform Trade Secrets Act provides a legal definition of what sort of information may be protected as a “trade secret.” A trade secret is defined as information such as a formula, pattern, compilation, program, device, method, technique, or process with its own potential or actual independent monetary value.

This information gains its value because it is not information known by the public or that another business could somehow figure out during their own business practices to use for their own gain. If a business wishes to have information protected as a trade secret, it must take reasonable steps to keep that information private.

How to Write a South Dakota Non-Disclosure Agreement

To write a basic South Dakota non-disclosure agreement, you first need to read the South Dakota Uniform Trade Secrets Act so that you better understand what the NDA can protect. Keep in mind that this isn't a substitute for legal advice. To help ensure enforceability, you should set an appointment with a law firm that practices employment law. You can save your template in Microsoft Word (.docx) for easy editing.

• The first paragraph is used to identify the parties. The Disclosing Party is the business needing to protect its trade secrets and other confidential information. The Receiving Party is the third-party accessing the information. Then, the scope (purpose) of the agreement is stated: to prevent the misappropriation of the confidential information. An effective date is also listed. Other key points of information, such as geographic restrictions and time restrictions, may also be listed.
• Definition of "trade secret" according to the South Dakota Uniform Trade Secrets Act. The State of South Dakota defines a trade secret as information such as a formula, pattern, compilation, program, device, method, technique, or process with potential or actual independent value. The value occurs because the information isn't known by the public or available for use by other businesses. Your business must take reasonable steps, which can be found in the statutes , to protect the information.
• Exemptions from confidential status. There will be times when information will not meet the requirements to be considered confidential. Common exemptions include if information is provided to the public at no fault of the Receiving Party, when the Disclosing Party provides written consent for the Receiving Party to disclose certain information, when the Receiving Party learns of certain things by legitimate means without the assistance of the Disclosing Party or their agent, or when the Receiving Party develops or creates something before providing it to the Disclosing Party.
• Obligations of the receiving party. Common obligations include maintaining the information in the strictest confidence, ensuring restricted access to the information, and not using the information for their benefit without first receiving written permission from the disclosing party.
• Relationship clause. In some South Dakota non-disclosure agreements, a relationship clause is important because it states that nothing within the agreement deems either party an employee, partner, or joint venturer of the other for any reason.
• Jurisdiction clause. A jurisdiction clause sets South Dakota laws as those which will be used to govern the agreement.
• Severability clause. A severability clause states that the remainder of the NDA shall remain enforceable if a South Dakota court holds that one clause is invalid.
• Integration clause. An integration clause states that the NDA expresses the complete understanding of the subject matter by the parties and that the agreement overrides all previous proposals, agreements, representations, and understandings. It should also state that the NDA may only be amended in writing and only if the parties sign the amendment.
• Waiver clause. This clause states that if a party fails to exercise any of their rights within the NDA, they do not waive their prior or subsequent rights.

The Disclosing Party and the Receiving Party should sign and date the agreement. The signatures should be dated. Finally, each party should receive a copy of the NDA for their records after it is executed.