These are the general rules of corporate and contract law, but they come with exceptions, of course. See also: Contract drafters typically include each party's type of organization and the jurisdiction in which it's organized — for example, "ABC Corporation, a Delaware corporation" — as a way of establishing diversity jurisdiction (a U. concept that might or might not be applicable) and personal jurisdiction as well as venue. To save negotiation time, this provision simply goes ahead and pre-authorizes some of those particular categories of use.
Northbound tries to create one new exception and invokes two established ones. Including the jurisdiction can simplify a litigator's task of "proving up" the necessary facts: If a contract signed by ABC Corporation recites that ABC is a corporation, for example, an opposing party generally won't have to prove that fact, because ABC will usually be deemed to have conceded it in advance. Acknowledgement Definition and its field notes.) It's useful to put the parties' initial addresses for notice in the preamble. A receiving party might want to state explicitly that that certain specified uses are authorized.
[THIS SECTION IS BEING EXTENSIVELY "REMODELED" so that all the drafts are similar in format to the short-form confidentiality agreement. That would provide the receiving party with a bright-line sunset date as well as providing the disclosing party with a year or two of safety margin. (b) For the avoidance of doubt, any Specimen of Confidential Information not returned or destroyed remains subject to the Confidentiality Obligations.
] [NOTE: Don't rely on the drafts below as a substitute for legal advice about your specific situation. If the receiving party's confidentiality obligations are allowed to expire, the disclosing party might thereafter find it difficult — or, more likely, impossible — to convince a court to enforce any trade-secret rights in the relevant information. A receiving party might find it to be tremendously burdensome and expensive to try to return or destroy all copies of a disclosing party's confidential information, even those in emails, backup systems, etc.
Young, sitting by designation in the District of Nevada, can be found here.
Also includes links to selected real-world contract forms. You're free to use the Common Draft materials (which are copyrighted) in accordance with the following license; all of the following permissions are given on the express condition that you agree to the Cautions below. This list of exclusions requires only reasonable corroboration of a claim of exclusion from confidentiality, as opposed to some provisions of this kind that require documentary proof of the claim. According to the court, that requirement helps to guard against the possibility that someone might "describe [their] actions in an unjustifiably self-serving manner …. (a) Information that is made available to the Receiving Party in connection with the Agreement, by or on behalf of the Disclosing Party, will not be considered Confidential Information unless the information is marked as provided in the Agreement. Compaq won because Convolve, which claimed trade-secret rights in certain information, had disclosed some of that information orally to Compaq, but didn't follow up those oral disclosures with written summaries, which was required by the parties' non-disclosure agreement. At all times during the Confidentiality-Obligation Period, the Receiving Party must cause the following precautions to be taken to safeguard Confidential Information in its possession, custody, or control: (1) at least the same precautions as the Receiving Party takes for its own information of comparable significance; (2) in no case less than those precautions that a prudent person would take in the same circumstances; and (3) any other particular secrecy precautions stated in the Agreement. 1960) (per curiam, adopting district court opinion).
These multiple capacity claims often present policy interpretation and coverage issues under D&O insurance policies.
This is sometimes done in "master" agreements that are available to the affiliates of one or more parties. For example, California Evidence Code § 622 provides: "The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration." (Emphasis added; hat tip: Commenter "Kazu" at the Adams Drafting blog.) See also the notes to CD-25.2. When an agreement is made to settle a dispute, it can be really advantageous for the background ssection of the signed agreement to document that fact. According to plaintiffs, there had been numerous business disputes, between Tzolis and them, concerning the sublease. (a) The parties intend to use the Agreement as a pre-negotiated set of terms and conditions for one or more purchase orders, statements of work, or other specific agreements incorporating the Agreement by reference. This will be especially true if the Receiving Party's workforce includes so-called leased employees or other individuals working long-term in independent-contractor status.
The long-term goal of the Common Draft project is to serve as a lasting, public repository of carefully-drafted contract provisions that cover a wide variety of business needs, with annotations, commentary, and student exercises. A receiving party might want an expiration date for confidentiality obligations as a safe harbor. A disclosing party will want to follow up to be sure that the return-or-destruction requirement is actually complied with; if it were to fail to do so, a receiving party (or a third party) could try to use that as evidence that the disclosing party did not take reasonable precautions to preserve the secrecy of its confidential information, as discussed in this annotation.
Please email me with suggestions for additions or revisions at [email protected] After X years have gone by, it might well take time and energy for the receiving party to figure out (1) which information of the disclosing party is still confidential, and (2) whether the receiving party might be using or disclosing confidential information in violation of the NDA. Likewise, if the receiving party were to forget to comply with its return-or-destruction obligations, then the disclosing party might use that fact to bash the receiving party in front of a judge or jury.
Free for (limited) use under a Creative Commons license. The INCOTERMS® are "a series of pre-defined commercial terms published by the International Chamber of Commerce (ICC) [that are] widely used in international commercial transactions …. the purpose of corroboration [is] to prevent fraud, by providing independent confirmation of the [witness's] testimony." See Sandt Technology, Ltd. Resco Metal & Plastics Corp., 264 F.3d 1344, 1350 (Fed. 2001) (affirming relevant part of summary judgment; internal quotation marks and citation omitted). (b) Except as otherwise stated below, for information to be considered Confidential Information, the information must: (1) be set forth (or summarized) in tangible form (including for example an electronic storage device); and (2) be marked with a reasonably-prominent, visually-readable notice such as (for example) "Confidential information of [name]" or "Subject to NDA." In assessing whether a disclosing party in fact maintained particular information in confidence, a court very likely will give significant weight to whether the disclosing party caused the information to be marked as confidential. In many situations, these "standard" precautions are likely to satisfy the disclosing party's desires, but for some types of Confidential Information, a disclosing party might want to insist on special precautions — especially in the era of criminal hackers, and even state actors, breaking into insufficiently-secure computer systems and stealing valuable information, such as happened to Sony Pictures Entertainment, allegedly at the hands of North Korea, and to Home Depot, which booked a charge of 1 million after a 2014 theft of customers' credit-card data. (1) will not waive or otherwise affect the Disclosing Party's ability to enforce its other intellectual-property rights (for example, copyrights and patents) against the Receiving Party except to the extent, if any, that the parties expressly agree otherwise in writing; and (2) will not affect any obligation of confidentiality imposed by law.
Both a contract drafter and a contract reviewer can save some time by first reviewing — together — the Common Draft short-form contract drafts (as well as other clause titles) and discussing just what types of provision they want in their document. The better approach is the one taken by this provision. Court of Appeals for the Federal Circuit explained this balancing concept in an analogous context, namely the patent-law requirement that claims of prior invention must be corroborated. 10, 2016) (affirming award of treble damages and trebled attorney fees; internal quotation marks omitted), quoting Washburn & Moen Mfg. Some language in this disclaimer is in all-caps bold-faced type so that the language will be conspicuous. A company's failure to do catch-up marking of confidential information after an oral disclosure to another party can kill the company's claim to trade-secret rights in the information. Compaq, the computer manufacturer Compaq (then part of Hewlett-Packard) defeated Convolve's claim that Compaq had misappropriated Convolve's trade secrets concerning hard-disk technology. A receiving party, though, might well object to this provision because it's necessarily vague, which could later lead to disputres about whether particular information qualified as "clearly" confidential.
CAUTION: An affiliate of a contracting party might be bound by the contract if the contracting party — or its signatory — controls the affiliate and the contract states that the contract is to benefit the affiliate. Both the complaint and Pappas's affidavit opposing the motion to dismiss portray Tzolis as uncooperative and intransigent in the face of plaintiffs' preferences concerning the sublease. (b) The Agreement in itself does not obligate either party except to the extent indicated otherwise. That agreement called for the retailer to order solar-panel products from the manufacturer at stated prices. Limiting disclosures by the Receiving Party to a need-to-know basis is pretty standard in confidentiality provisions.