Confidentiality Agreements

Excluding Consequential Damages in a Confidentiality Agreement?

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 on AdamsDrafting. Here’s the glossary … Read More

Whistleblowers and Confidentiality Agreements

I’m revising the guidance to Koncision’s confidentiality-agreement template to note that being bound by a confidentiality agreement might not preclude an employee from acting as a whistleblower and disclosing information that might otherwise be covered by the confidentiality agreement. In that regard, consider section 21F-17(a) of the Securities Exchange Act of 1934, which implements the Dodd-Frank Act’s securities whistleblower provisions. … Read More

Dubious Contract Drafting: An Extract from a Model Confidentiality Agreement

You’d have thought that by now I’d be inured to how problematic contract drafting is at all levels of the legal profession, but I find myself continually amazed. So how should I respond? Constant kvetching can make me look like a crank. But saying nothing seems defeatist. So I’ve decided that what I’ll do is periodically dissect deficient drafting offered … Read More

An Alternative to Indemnification Language for Koncision’s Confidentiality Agreement

It’s time that I tidied up one loose end. In this recent post, I proposed indemnification language to include in a confidentiality agreement in order to say who is responsible for liabilities resulting from disclosure of confidential information by representatives of the recipient. I thought that the new language would make it clear that when bringing a claim for indemnification … Read More

The Notion of “Term” and “Termination” in Confidentiality Agreements

[Updated 12 April 2018: I still use the approach outlined in this post.] I’ve structured Koncision’s automated confidentiality-agreement template so that you have (1) a period during which one party provides the other with, or the parties exchange, confidential information and (2) a subsequent period during which a party that received information during that initial period must keep it confidential. … Read More

What to Call the Two Kinds of Confidentiality Agreement

I addressed in this September 2009 AdamsDrafting blog post the thrilling issue of which term is preferable, confidentiality agreement or nondisclosure agreement. (I explained that I prefer confidentiality agreement.) Of course, you have various other redundant possibilities: confidential disclosure agreement, secrecy agreement, confidentiality and nondisclosure agreement, proprietary information agreement … But that’s not what’s on my mind today. Instead, consider the … Read More

“Confidentiality” or “Nondisclosure”?

Here’s a gripping issue: What should one call a contract requiring that certain information be kept confidential—confidentiality agreement or nondisclosure agreement? What nondisclosure agreement has going for it is the convenient and universally recognized initialism NDA. By contrast, I’ve rarely seen CA used for confidentiality agreement. Nevertheless, I prefer confidentiality agreement, because nondisclosure agreement expresses the concept in the negative. … Read More

The Duration of Confidentiality Agreements

Reader David recently posed the following question: I have a question for you that has bugged me for several years. From time to time, my company shares company-related information with a third party and, before doing so, enters into a confidentiality agreement (CA) [also known as a nondisclosure agreement—KAA] with the third party. Our CA has a term of five … Read More