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Confidentiality Agreements

General description

A confidentiality agreement protects one party's confidential information against disclosure and unauthorized use by the other party (or parties). The agreement may be reciprocal, requiring each party to protect the other's confidentiality.

Confidentiality agreements are also commonly called non-disclosure agreements.

General Scenarios

Situation Purpose: parties' needs and intentions Important issues Level of business complexity
Evaluating potential business relationship Protection in situation where value at risk is relatively low and consequences of disclosure or misuse are also relatively low
  1. Non disclosure
  2. Use restricted to purpose of disclosure
  3. Mutuality
1
Employment
Providing services

List the specific contracts required/planned for this family of agreements

  1. Simple, mutual confidentiality agreement
  2. Simple, one-way confidentiality agreement

Overall considerations

  • Whether and what to disclose
  • Common-law obligations of confidentiality - operate in absence of a confidentiality agreement and may operate even when there is a signed agreement
  • Two main approaches: definitional (typically, everything disclosed is confidential, subject to certain exceptions) and procedural (a process is defined to determine and mark what is confidential)
  • Mutual or one-way agreement?
  • Obligation of non disclosure
  • Obligation restricting use of disclosed information
  • Non-competition clause - offer as a separate optional clause
  • Residuals clause
  • For matters that are patentable and may be the subject of a patent application - must keep confidential
    • Potential issue: putting a time limit on non-disclosure obligation

Terminology

  • We will name this type of agreement a "Confidentiality Agreement" instead of "Non Disclosure Agreement" because the label of confidentiality better reflects the obligations in these agreements: the obligations are typically broader than simple non disclosure. They often include, for example, obligations that restrict the use of the disclosed information. See http://www.adamsdrafting.com/2009/09/10/confidentiality-or-nondisclosure/ for background discussion on the naming issue.

Summarize matters to be covered and not covered, in each specific contract

  • table/tickbox format?

Outline optional provisions

  • Non competition clause - develop as a separate optional clause

Related documents

  • links to related contracts and clauses
  • especially to related contracts that may be part of a bundle targeting certain users (e.g., a bundle of contracts for startup companies)

Prioritize preparation of specific contracts

  1. Simple, mutual confidentiality agreement
  2. Simple, one-way confidentiality agreement

Resources

Notes and comments from participants

  • please note comments, questions and suggestions here, related to this document and this part of the contract creation process
  • please include your name and the date with your comments

Status

  • summary of contracts under development pursuant to this Blueprint, and their status
Creative Commons Attribution 3.0 Unported
This Work, LexPublica, is licensed under a Creative Commons Attribution 3.0 Unported license, although certain works referenced herein may be separately licensed.