CONFIDENTIALITY AND NONDISCLOSURE SERVICES

Confidentiality and non-disclosure provisions can appear in many guises. For example, a nondisclosure obligation can appear in a:

• Employee Manual
• Independent Sales Representative Agreement
• Non-Disclosure Agreement (NDA)
• Professional Services Agreement Between a Professional Medical Corporation and a Registered Nurse
• Technology Licensing Agreement

We sensitize our clients as to when it is appropriate to obtain an NDA and when it may be more prudent to withstand requests for a long-term, signed release. We also draft nondisclosure obligations to maximally protect our clients, and scrutinize drafts from our attorney counterparts to ensure our clients are protected. Many times our clients are asked to sign overbroad commitments and our role is to whittle down the language to a strategically more manageable promise.

Here is one typical confidentiality provision:

“Confidential Information” means any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any other person’s information, such other person’s) past, present, or future research, development or business activities, including any unannounced product(s) and service(s), and including any information relating to services, developments, inventions, processes, plans, financial information, customer and supplier lists, business practices, strategic plans, trade secrets, forecasts, and projections. Confidential Information shall also include the terms of this Agreement (including without limitation all the prices, costs, and other information in the Appendices). Notwithstanding the foregoing, Confidential Information shall not be deemed to include information that: (1) is publicly available at the time disclosed; (2) is or becomes publicly available through no fault of the party receiving such information; (3) is rightfully communicated to the recipient by persons not bound by confidentiality obligations; or (4) is independently developed by the recipient.

The Confidential Information is and will remain the sole and exclusive property of each respective party. Except as authorized in writing by the Company, the Independent Sales Representative (“ISR”) shall not at any time, either during or after the term of this Agreement, disclose or use, directly or indirectly, any Confidential Information of which the ISR gains knowledge during or by reason of this Agreement and the ISR shall retain all such information in trust in a fiduciary capacity for the sole use and benefit of the Company. In the event that the ISR operates one or more locations, the ISR shall not disclose any Confidential Information to local management or employees of such other locations. ISR may not, at any time during the term of this Agreement or for a period of one (1) year after the termination of this Agreement, for any reason whatsoever, with or without cause, directly or indirectly, use for any purpose or disclose or distribute to any person, corporation, partnership, sole proprietorship, governmental agency, organization, joint venture or other entity, any Confidential Information except as required by order of a court of competent jurisdiction. The covenants contained in this Section will survive the termination of this Agreement. The parties agree that money damages would not be a sufficient remedy for any wilful breach of this Section of this Agreement and that the respective injured party will be entitled to equitable remedies, including an injunction, as a remedy for any such breach. Upon termination of this Agreement, ISR shall promptly return or destroy all files, lists, records, documents, drawings, specifications, equipment, and computer programs that incorporate or refer to any Confidential Information.

Since these obligations can be drafted to survive the termination of an agreement, it is important to ensure that they are carefully tailored to a client’s needs.