Liability for Permitted Receivers - OneNDA Provision

OneNDA Owner’s Manual™ A Jolly Contrarian owner’s manual™ Go premium Overview — Summary — See also — Wikitext NDA Showdown OneNDA Homemade NDA What is Confidential Information? Confidential information Exclusions from confidential information Who can I share it with? Affiliates Permitted receivers Disclosure to regulators What are my obligations? Confidentiality obligation Procure compliance Return of information How long do my obligations last? Term Other important information Boilerplate Remedies Don’t go there girlfriend topics Non-solicitation Exclusivity Indemnity Sample text The Receiver is liable for its breach of this Agreement and any act or omission by a Permitted Receiver which would constitute a breach of this Agreement if it were a party to it. Resources and Navigation Index: Click ᐅ to expand: OneNDA TOC OneNDA NDA

Summary

It seems harsh and the quail-livered among you might say, “but it is not fair! I cannot control what those people among my clients, customers and counterparts do!

Ah but you should treat the information as if it were your own, should you not? As you are the one deciding to part with it, for your own purposes and to suit your own commercial interests, you should be responsible should ill befall the information on your watch. If you don’t trust someone to whom you, er, entrust the information, don’t give it to them.

What about direct contractual liability against disclosees

A nonsense. Don’t go there: your very first lecture in the law of contract, or agency, should tell you why. The downstream disclosees are not parties to the contract. The contracting party therefore must certainly be liable for their breach of confidence, as if it had breached it directly. That is implied by the chain of contract – since recipients aren’t privy to the contract, the discloser can’t sue them, so it must surely be the contracting party’s responsibility to ensure that persons to whom it gives the information do not misuse it, and accept liability for their actions if they do.

A fundamental truth, alas not recognised by many in-house legal eagles: you can’t absolve yourself of your own contractual obligations just by delegating them to someone else.