Category Archives: Confidentiality Agreements

New Webcast: “Drafting and Reviewing Confidentiality Agreements”

Posted on January 19, 2012 by Kenneth A. Adams

I’m pleased to announce that West LegalEdcenter is now offering a new Koncision webcast, “Drafting and Reviewing Confidentiality Agreements.” It weighs in at 1 hour and 13 minutes and comes with CLE credit. Go here for more information. Joining me …

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“No Reliance” Language for a Confidentiality Agreement

Posted on January 8, 2012 by Kenneth A. 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 …

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

Posted on January 2, 2012 by Kenneth A. 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 …

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Posted in Confidentiality Agreements | 8 Comments

Excluding Consequential Damages in a Confidentiality Agreement?

Posted on October 18, 2011 by Kenneth A. 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 …

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Posted in Confidentiality Agreements | 8 Comments

Whistleblowers and Confidentiality Agreements

Posted on August 8, 2011 by Kenneth A. Adams

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 …

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Posted in Confidentiality Agreements | 2 Comments

Making an NDA Cover Past Disclosures

Posted on June 17, 2011 by Kenneth A. Adams

Steven Sholk, director at the Newark, New Jersey office of Gibbons and a longtime source of valuable leads, sent me the Eleventh Circuit’s recent opinion in News America Marketing In-Store, LLC v. Emmel (PDF copy here). It contains an interesting …

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Posted in Confidentiality Agreements | 4 Comments

Dubious Contract Drafting: An Extract from a Model Confidentiality Agreement

Posted on May 5, 2011 by Kenneth A. Adams

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 …

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Posted in Confidentiality Agreements, Dubious Contract Drafting | 20 Comments

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

Posted on February 15, 2011 by Kenneth A. Adams

I’ve structured Koncision’s 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 …

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Posted in Confidentiality Agreements | 17 Comments

Indemnification: Glenn West Wades In!

Posted on January 10, 2011 by Kenneth A. Adams

Longtime readers of my blogging will know that I’m an unabashed fan of the work of Glenn West, a partner at Weil Gotshal. His articles on extra-contractual liability (click here for a copy) and on consequential damages (click here for …

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Posted in Confidentiality Agreements, Select Provisions | 11 Comments

Indemnification: A Misunderstood Concept

Posted on January 6, 2011 by Kenneth A. Adams

[Updated 3:00 p.m. EST, January 10, 2011: In this post, I propose revised indemnification language. I'll chew over whether still to offer as an option in Koncision's confidentiality agreement the alternative language I offer below.] [Updated 9:50 a.m. EST January …

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Posted in Categories of Contract Language, Confidentiality Agreements | 16 Comments

When Does Information Become Public?

Posted on December 16, 2010 by Kenneth A. Adams

A standard element of confidentiality agreements is exclusions from the definition of “Confidential Information.” They’re sufficiently inevitable that longtime reader Michael Fleming refers to them as “The Four Romanettes®.” I’ve been mulling over one of them, the exclusion for information that …

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Posted in Confidentiality Agreements | 8 Comments

Conventions Regarding the Order of Parties in the Introductory Clause

Posted on December 15, 2010 by Kenneth A. Adams

I’ve noticed that in most one-way confidentiality agreements, the disclosing party is listed first in the introductory clause. That prompted me to speculate whether in other kinds of contracts there’s a generally accepted order in which the parties are listed …

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Posted in Confidentiality Agreements, Introductory Clause | 3 Comments

What to Call the Two Kinds of Confidentiality Agreement

Posted on December 13, 2010 by Kenneth A. Adams

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, …

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Posted in Confidentiality Agreements | 1 Comment

Disclosing Someone Else’s Confidential Information

Posted on December 6, 2010 by Kenneth A. Adams

Here’s another confidentiality-agreement issue that I’ve been mulling over. I don’t recall having seen it discussed in the literature. As I understand it, in a commercial context it’s commonplace for the disclosing party under a confidentiality agreement to disclose to …

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Posted in Confidentiality Agreements | 6 Comments

Exploring “Shall Cause”

Posted on December 2, 2010 by Kenneth A. Adams

I’m currently working on Koncision’s first product, a line of confidentiality agreements. I’m being assisted by Koncision’s confidentiality agreement editorial board (go here for their bios), but I expect to air issues on this blog routinely. And here’s one to …

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Posted in Categories of Contract Language, Confidentiality Agreements | 22 Comments