South Dakota consultant nda template

South Dakota Consultant Non-Disclosure Agreement

Effective Date: [Date]

This Non-Disclosure Agreement (the “Agreement”) is made as of the Effective Date by and between:

[Company Name], a [State] [Entity Type] with its principal place of business at [Company Address] (“Disclosing Party”),

and

[Consultant Name], residing at [Consultant Address], or [Consultant Company Name], a [State] [Entity Type] with its principal place of business at [Consultant Company Address] (“Receiving Party”).

1. Definition of Confidential Information

Option A: “Confidential Information” means any and all information disclosed by Disclosing Party to Receiving Party, whether orally, in writing, electronically, or by any other means, that relates to Disclosing Party’s past, present, or future business activities, research, development, trade secrets, customer lists, and financial information.

Option B: “Confidential Information” includes, but is not limited to, technical data, proprietary business information, all forms of communication (written, oral, visual, digital, or tangible), client or customer lists, business strategies, marketing plans, project documents, development processes, intellectual property (including copyrights, patents, trademarks or trade secret information as defined under SDCL Chapter 37-29), financial data, pricing models, proposals, internal business policies or standard operating procedures, deliverables created during the consultancy, and any confidential third-party information accessed by the consultant.

2. Exclusions from Confidentiality

Option A: This Agreement does not apply to information that: (a) is or becomes publicly available through no fault of Receiving Party; (b) was already known to Receiving Party prior to disclosure by Disclosing Party, as evidenced by Receiving Party’s written records; or (c) is independently developed by Receiving Party without use of or reference to the Confidential Information.

Option B: This Agreement does not apply to information that:

• was already known to the Receiving Party before disclosure (with documentary evidence)
• is publicly available information (other than through Receiving Party’s breach)
• is independently developed by the Receiving Party without recourse to the confidential material
• is required to be disclosed by a South Dakota court or regulatory body pursuant to subpoena or state/federal law, provided the Receiving Party gives prompt notice and cooperates in any attempt to seek protective order or limit disclosure.

3. Use of Confidential Information

Option A: Receiving Party shall use the Confidential Information solely for the purpose of [Specify Purpose, e.g., providing consulting services to Disclosing Party] and shall not disclose such information to any third party without Disclosing Party’s prior written consent.

Option B: Receiving Party's use of Confidential Information is strictly limited to providing specifically described consultant services for Disclosing Party, expressly prohibiting any use for Receiving Party’s own business, personal benefit, resale, or disclosure to other clients or third parties.

4. Protection of Confidential Information

Option A: Receiving Party shall take reasonable measures to protect the confidentiality of the Confidential Information, including, without limitation, measures no less protective than those Receiving Party takes to protect its own confidential information of a similar nature.

Option B: Receiving Party shall adopt South Dakota-specific reasonable measures to safeguard the information, which may include individualized physical security, controlled access, secure shredding, secure electronic transmission, and mandatory encryption of sensitive data in line with any relevant state or federal industry regulations.

5. Term and Termination

Option A: This Agreement shall commence on the Effective Date and shall continue for a term of [Number] years. The obligations of confidentiality shall survive termination of this Agreement for a period of [Number] years.

Option B: This Agreement shall commence on the Effective Date. Confidentiality obligations shall survive termination of the consultancy and continue for [Number] years after the end of the contractual relationship (or permanently for trade secrets according to SDCL § 37-29-1 et seq.).

6. Return of Confidential Information

Option A: Upon Disclosing Party’s written request, or upon termination of this Agreement, Receiving Party shall promptly return to Disclosing Party all documents and other tangible materials representing the Confidential Information, including all copies thereof.

Option B: Receiving Party shall immediately return or securely destroy all confidential materials, physical or electronic, at the request of the Disclosing Party or upon contract termination, including certification of destruction by the Receiving Party.

7. Unauthorized Disclosure

Option A: Receiving Party shall promptly notify Disclosing Party of any unauthorized use or disclosure of the Confidential Information.

Option B: Receiving Party shall promptly notify the Disclosing Party of any unauthorized access, loss, or intended/accidental disclosure of Confidential Information, and actively cooperate in any investigation or remedial action, referencing relevant South Dakota data breach notification laws (SDCL § 20-40-20 and § 22-40-20.1).

8. Remedies

Option A: Disclosing Party shall be entitled to injunctive relief to prevent any breach of this Agreement, in addition to any other remedies available at law or in equity.

Option B: For breach of this agreement, Disclosing Party is entitled to contractual damages, injunctive relief, indemnification, and recovery of court or arbitration costs and attorneys’ fees, referencing South Dakota’s standards for enforceability of such contractual penalty clauses.

9. Prior Knowledge/Residual Knowledge

Option A: Nothing in this Agreement shall preclude Receiving Party from using information retained in the unaided memories of its employees who have had access to the Confidential Information for the purposes of their employment, provided that such use does not amount to a disclosure of the Confidential Information.

Option B: (Include if applicable) Carve-out provisions for consultant’s prior knowledge and residual knowledge shall conform to South Dakota case law regarding unfair competition and the enforceability of NDAs.

10. Non-Compete/Non-Solicitation

Option A: (Include if applicable) During the term of this Agreement and for a period of [Number] years thereafter, Receiving Party shall not, directly or indirectly, engage in any business that competes with the business of Disclosing Party within a [Geographic Area].

Option B: (Include if applicable) Any non-compete and non-solicitation clauses are subject to South Dakota’s legal restrictions on restraints of trade (SDCL § 53-9-8), including limitations on geographic scope, covered activities, and permissible duration in a consultant context.

11. Governing Law and Venue

Option A: This Agreement shall be governed by and construed in accordance with the laws of the State of South Dakota. Any legal action arising out of or relating to this Agreement shall be brought in the state or federal courts located in [County Name] County, South Dakota.

Option B: This agreement is governed by South Dakota state law. Exclusive venue for disputes is in a South Dakota court or specified local arbitration. The parties’ preferred order of dispute resolution is negotiation, mediation, followed by arbitration or litigation, in alignment with local procedure.

12. Severability

Option A: If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain in full force and effect.

Option B: The severability clause is tailored for South Dakota to ensure continued enforceability of the NDA if any provision is invalidated by a South Dakota court.

13. No License

This Agreement does not grant Receiving Party any license, ownership, or right to use the Confidential Information beyond the express purpose of the consulting engagement.

14. Amendment

No amendment or waiver of any provision of this Agreement shall be effective unless it is in writing and signed by both parties. Amendments or waivers must be made in a signed written document referencing South Dakota legal standards for contract modification.

15. Independent Legal Advice

Both parties acknowledge that they have had the opportunity to seek independent legal advice regarding this Agreement, and Receiving Party understands and voluntarily accepts the agreement.

16. Representations (Business Entities)

(Include if applicable) The parties confirm that they are duly formed and authorized to do business in South Dakota.

17. Compliance

The parties will comply with any industry-specific South Dakota rules or codes affecting protected data or client relationships (e.g., banking, healthcare, legal professions).

18. Relationship

This NDA does not create an employment, partnership, or joint venture relationship, but is strictly an independent contractor/consultant relationship as defined under South Dakota law.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.

Disclosing Party:

____________________________

Signature

[Disclosing Party Representative Name]

[Disclosing Party Title]

Receiving Party:

____________________________

Signature

[Receiving Party Representative Name]

[Receiving Party Title]

(Optional - Notary Acknowledgment)

State of South Dakota )

) ss.

County of [County Name] )

On this [Day] day of [Month], [Year], before me, the undersigned officer, personally appeared [Name of Disclosing Party Representative], known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that he/she executed the same for the purposes therein contained.

In witness whereof I hereunto set my hand and official seal.

____________________________

Notary Public

My Commission Expires: [Date]

State of South Dakota )

) ss.

County of [County Name] )

On this [Day] day of [Month], [Year], before me, the undersigned officer, personally appeared [Name of Receiving Party Representative], known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that he/she executed the same for the purposes therein contained.

In witness whereof I hereunto set my hand and official seal.

____________________________

Notary Public

My Commission Expires: [Date]