Under contractual conditions of confidentiality, oral, written, explicit or implied conditions may be, but are subject to the usual contractual rules, namely: consideration and effectiveness. Obligations arising from the unlawful act include breach of confidentiality agreements, intervention in commercial activity, conversion of Chattels and abuse, or trust. Illicit claims may also arise in particular circumstances in which special due diligence obligations are pending. It might not be necessary to include Option 1: it would take a serious chuzpe on the part of the recipient of leaks of confidential information in order for it to be made public, and then assert that the information is covered by the exemption for public information. There is no right or wrong choice, but I am inclined to do so explicitly. Here is a simple clause that you can use in the Agreement of the Canadian Corporate Counsel Association: The Public Legend (Option 8) is simply a mistake because it has no influence on the general availability of information. Ned Barlas, my colleague from Penn Law Review a long time ago and one of my sources of intellectual property advice, tells me that in the public domain, we are talking about the copyright status of a work that is no longer subject to copyright protection and that patented inventions and non-patentable inventions sometimes have to be made public. Certainly, anyone who uses the public domain with the exception of public information simply considers it an alternative to the public. I would not take seriously the “available for all” component of the definition of black. That doesn`t mean that everyone – every person on the planet – knows that the information is available. Instead, you should ask yourself if this is availability in a specific community. For the purposes of a confidentiality agreement, the appropriate community could be the question of which industry would like to use this information.
Otherwise, make disclosures at your peril, because the receptive party may argue that it did not accept the confidentiality of the information disclosed prior to the signing of the NDA. The exception for public information may be limited as follows (there are many variations): these agreements may be a unique possibility if a single party may disclose confidential information (“public party”) to the other (“receiving party”) or be reciprocal if both parties make statements and are required to keep the other`s disclosures secret, unless authorization is granted. While it may be tempting to define as confidential all the information you disclose to a receiving party, you avoid using a catch-all clause. Instead, limit confidentiality to information that is really needed to be kept secret. Instead of referring to availability, you can refer to knowledge, as is known publicly (option 4). This seems to be a higher standard, but it does not reflect our relationship with information. The information we know is only a tiny fraction of the information available, and we can now get information in the blink of an eye. Limiting the exemption to known information makes no sense. While this does not necessarily invalidate an NOA, another important factor to consider is the feasibility and ease of implementing the agreement.
In Option 5 and Option 6, these concepts are largely and generally superfluous, as these concepts are inherent in the idea of publishing information. But if you want to make it clear that the community that needs to be considered is a particular area, I would use the option 7 formula.
