Drafting and Reviewing Confidentiality Agreements

Drafting and ReviewingConfidentiality Agreements

West LegalEdcenter2012

Presenters

• Ken Adams• Chris Lemens• Glenn West

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Initial Questions

• Whether to enter into a confidentiality agreement

• One-way or two-way?

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Context

• Ongoing relationship– Includes employer–employee relationship

• Proposed transaction– Includes M&A transactions

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Defining "Confidential Information"

• General definition– Does it include information disclosed before

the date of the agreement?• Exclusions

– Relevance of personally identifiable information

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Maintaining Confidentiality

• "Term"– For how long is confidential information going

to be disclosed?– For how long does the recipient have to not

use or disclose the information?• Distinguishing between trade secrets

and other information

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Disclosure Procedures

• Specified representatives• Marking• Giving notice

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Unauthorized Disclosure or Use

• Data-security measures• Making the recipient responsible

– Language alternatives

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Action on Termination

• Return or destroy?• Exceptions

– Records-retention policy– Storage in backup media– File copies

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No Soliciting

• No soliciting v. no hiring• Permutations

– General-advertising exemption

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Miscellaneous

• Reverse engineering• Residual information• Boilerplate

– Litigation v. arbitration– Exclusion of damages

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Process

• Drafting– Document assembly

• Review– Automated document analysis (GreenLine,

BaseLine, kiiac)

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Extracts from EDGAR

THIS CONFIDENTIALITY AGREEMENT is entered into by and between Acme Corp., a Delaware corporation, and its wholly owned subsidiaries (“Acme”), and Widgetco, Inc., a New York corporation (“Widgetco”), through their authorized representatives, and takes effect on the date executed by the final party (the “Effective Date”).

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Extracts from EDGARConfidential Information includes, but is not limited to, the following: (a) Customer records, identity of vendors, suppliers, or landlords, profit and performance reports, prices, selling and pricing procedures and techniques, and financing methods of the Company; (b) Customer lists and information pertaining to identities of the customers, their special demands, and their past, current and anticipated requirements for the products or services of the Company; (c) Specifications, procedures, policies, techniques, manuals, databases and all other information pertaining to products or services of the Company, or of others for which the Company has assumed an obligation of confidentiality; (d) Business or marketing plans, accounting records, financial statements and information, and projections of the Company; (e) Software developed or used by the Company; (f) Information related to the Company’s retailing, distribution or administrative facilities; and (g) Any other information identified or defined as confidential information by Company policy.

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Extracts from EDGAR

The obligations of this Section shall not apply to ... (c) information which was rightfully in the possession of the receiving party prior to disclosure by the disclosing party; or ... .

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Extracts from EDGAR

This Agreement shall be inoperative as to any portion of the Information that (i) is or becomes generally available to the public on a non-confidential basis through no fault by you or your Representatives, or (ii) is or becomes available to you on a non-confidential basis from a source other than the Company, Widget Client Services, [NAME OF LENDER] or their respective Representatives … .

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Extracts from EDGARPursuant to Section 48.05 of that certain Lease, dated as of July _____, between Acme Finance Inc. (the “Company”) and 85 Widget Street LLC (the “Landlord”) for certain space at 85 Widget Street, Widgetville, New York (the “Property”), the Company is obligated to provide to Landlord certain non-public, confidential, proprietary financial information with respect to the Company and its affiliates (“Confidential Information”).

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Extracts from EDGAR

Each party agrees: (i) to maintain the other party’s Confidential Information in strict confidence; (ii) not to disclose such Confidential Information to any third parties; and (iii) not to use any such Confidential Information for any purpose except for the Business Purpose.

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Extracts from EDGARThe receiving party shall treat as strictly confidential, and use all reasonable efforts to preserve the secrecy and confidentiality of, all Confidential Information received from the disclosing party, including implementing reasonable physical security measures and operating procedures.

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Extracts from EDGARThis Confidentiality Agreement may be terminated by either party upon breach by the other party of any its obligations hereunder and such breach is not cured within three (3) calendar days after the allegedly breaching party is notified by the disclosing party of the breach.

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Extracts from EDGARALL CONFIDENTIAL INFORMATION IS PROVIDED BY THE DISCLOSING PARTY “AS IS.”

EXCEPT AS MAY OTHERWISE BE SET FORTH IN A SIGNED, WRITTEN AGREEMENT BETWEEN THE PARTIES, THE PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, AS TO THE ACCURACY, COMPLETENESS, CONDITION, SUITABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OF ANY CONFIDENTIAL INFORMATION, AND THE PARTIES SHALL HAVE NO LIABILITY WHATSOEVER TO ONE ANOTHER RESULTING FROM RECEIPT OR USE OF THE CONFIDENTIAL INFORMATION.

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