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Adams on Contract Drafting

The Obligation Not to Disclose Versus the Obligation to Keep Confidential

Posted on February 13, 2020 by Ken Adams

I recently found myself once more poking around the entrails of confidentiality agreements. The issue related to one of the core obligations, namely the obligation not to disclose confidential information. (The other is the obligation not to use confidential information except as specified.) The rest of this post is on the LegalSifter blog, here.

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The Public-Information Exception to the Definition of Confidential Information

Posted on October 29, 2018 by Ken Adams

In this recent post (now extensively revised) I consider two standard exceptions to the definition of Confidential Information and propose what I’d do instead. Now we’ll look at another exception, the one relating to public information. With this exception, the question is how exactly to phrase it. The Kind of Information Let’s look at the different […]

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Exploring Two Exceptions to the Definition of Confidential Information

Posted on October 27, 2018 by Ken Adams

[Substantially revised 29 October 2018] I’ve had occasion to revisit something I explored a while ago. Here’s a relatively standard set of exceptions to the definition of Confidential Information, with my shorthand term for each exception noted in brackets: at the time of disclosure is, or thereafter becomes, generally available to and known by the […]

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Being on the Lookout for Unusual Provisions

Posted on May 10, 2018 by Ken Adams

Go here for my first post on LegalSifter’s blog. It’s about the different perspective that’s required when you’re reviewing rather than drafting, and it focuses on a provision you see sometimes in confidentiality agreements.

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You’re Proposing to Disclose Confidential Information to a Company that Might Be Acquired by One of Your Competitors. What Do You Do?

Posted on April 22, 2018 by Ken Adams

Consider this scenario: Acme is contemplating entering into a confidentiality agreement with Widgetco under which Acme would provide confidential information to Widgetco. But Acme is concerned that Widgetco might be acquired by a competitor of Acme, resulting in Acme’s valuable confidential information getting into the competitor’s hands. What can Acme include in the confidentiality agreement […]

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Party-Name Defined Terms in Two-Way Confidentiality Agreements

Posted on April 21, 2014 by Ken Adams

I apologize in advance: what follows is even more nerdy than usual. In the past few days, two companies have shared with me their template for a two-way confidentiality agreement. In one template, the company responsible for the template is the first entity named in the introductory clause, and it’s given a defined term based on […]

Posted in Confidentiality Agreements 6 Comments

Delaware Supreme Court Enforces No-Reliance Language in Confidentiality Agreement

Posted on June 14, 2012 by Ken Adams

In RAA Management, LLC v. Savage Sports Holdings, Inc. (decided May 18, 2012; copy here), the Delaware Supreme Court held that no-reliance language included in a confidentiality agreement can serve to defeat claims for fraud brought by the recipient of confidential information. For more on this, go here for Francis Pileggi’s analysis and go here for […]

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“No Reliance” Language for a Confidentiality Agreement

Posted on January 8, 2012 by Ken Adams

In this May 2011 blog post discussing the Texas Supreme Court’s opinion in Italian Cowboy Partners, I acknowledged that if you want to increase the odds of avoiding fraud liability for extracontractual statements of fact, it would be prudent to use “no reliance” language instead of just saying that Acme has made no representations other […]

Posted in Confidentiality Agreements 2 Comments

How to State the Duration of the Obligation to Keep Information Confidential

Posted on January 2, 2012 by Ken Adams

A few days ago I uploaded a revised version of Koncision’s confidentiality-agreement template. Apart from glitches lurking in a few branches of the template’s copious decision tree, I changed how the template refers to duration of the obligation to keep information confidential. Anyone completing the previous version of the questionnaire was offered the following answers […]

Posted in Confidentiality Agreements 8 Comments

Excluding Consequential Damages in a Confidentiality Agreement?

Posted on October 18, 2011 by Ken Adams

I noticed that the Rocket Lawyer confidentiality agreement that I wrote about in this post yesterday excludes liability for “direct, indirect, special, or consequential damages.” Language excluding damages is a nightmare, because hardly anyone understands what that jargon means. It’s something I wrote about in this February 2010 post and this March 2010 blog post, both […]

Posted in Confidentiality Agreements 10 Comments

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