Confi Anatomy

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NDA Anatomy™

The OneNDA clause

1. What is Confidential Information?

1(a) Confidential Information means information that is disclosed:

(i) by a party to this Agreement (the Discloser) or on the Discloser’s behalf by its authorised representatives or its Affiliates,
(ii) to the other party to this Agreement (the Receiver), and
(iii) in connection with the Purpose.

1(b) Confidential Information does not include information that is:

(i) in the public domain not by breach of this Agreement,
(ii) known by the Receiver at the time of disclosure,
(iii) lawfully obtained by the Receiver from a third party other than through a breach of confidence,
(iv) independently developed by the Receiver, or
(v) expressly indicated by the Discloser as not confidential.

1(c) Affiliates means any entity that directly or indirectly controls, is controlled by, is under common control with or is otherwise in the same group of entities as a party to this Agreement.

2. Who can I share it with?

2(a) The Receiver may share the Confidential Information with its Permitted Receivers, which means its Affiliates and its officers, employees, members, representatives, professional advisors, agents and subcontractors of the Receiver or its Affiliates, but only if they:

(i) need to know it, and only use it, for the Purpose, and
(ii) have agreed to keep it confidential and restrict its use to the same extent that the Receiver has.

2(b) 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.
2(c) The Receiver may share the Confidential Information if legally required but must promptly notify the Discloser of the requirement if legally allowed.

3. What are my obligations?

The Receiver must:
3(a) only use the Confidential Information for the Purpose,
3(b) keep the Confidential Information secure and confidential and only disclose it as allowed by this Agreement,
3(c) promptly notify the Discloser if it becomes aware of a breach of this Agreement, and
3(d) take reasonable steps to destroy or erase any Confidential Information it holds within thirty days of the Discloser’s request, except the Receiver may retain copies of Confidential Information that are securely stored in archival or computer back-up systems or to meet legal or regulatory obligations, subject to this Agreement’s terms.

4. How long do my obligations last?

4(a) The Receiver’s duty to protect Confidential Information starts on the date Confidential Information is disclosed and lasts until the end of the Confidentiality Period.
4(b) Either party may terminate this Agreement with thirty days’ prior written notice, but this will not affect the parties’ obligations to protect Confidential Information disclosed before termination until the end of the Confidentiality Period.

5. Other important information

5(a) Notices. Formal notices under this Agreement must be in writing and sent to the email addresses on the Agreement’s front page as may be updated by a party to the other in writing.
5(b) Third parties. Except for the Discloser’s Affiliates, no one other than a party to this Agreement has the right to enforce any of its terms.
5(c) Entire agreement. This Agreement supersedes all prior discussions and agreements and constitutes the entire agreement between the parties with respect to its subject matter and neither party has relied on any statement or representation of any person in entering into this Agreement.
5(d) Amendment. Any amendments to this Agreement must be agreed in writing.
5(e) Assignment. Neither party can assign this Agreement to anyone else without the other party’s consent.
5(f) Waiver. If a party fails to enforce a right under this Agreement, that is not a waiver of that right at any time.
5(g) Equitable relief. The Discloser may seek injunctive relief or specific performance to enforce its rights under this Agreement.
5(h) Alternative dispute resolution. The parties may refer any disputes arising under this Agreement to mediation or arbitration for resolution if agreed to in writing by both parties.
5(i) Governing law and jurisdiction. The Governing Law applies to this Agreement and all disputes will only be litigated in the courts of the Jurisdiction.
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OneNDA Anatomy

1. What is Confidential Information?
2. Who can I share it with?
3. What are my obligations?
4. How long do my obligations last?
5. Other important information

General things to think about

Copyright and confidence

On the distinction between copyright and confidence

The key thing is to distinguish between breach of copyright and breach of confidence. The former is an intellectual property right over the form of information; the latter a contractual right over the substance of information.

  • Breach of copyright: Copyright subsists in the particular articulation of the information, rather than in the information per se. To breach someone’s copyright is to deny a copyright owner the commercial benefit of its creation: e.g., by accessing for free something the copyright owner wants you to pay for. In other words I can’t copy Harry Potter and the Philosopher’s Stone without J.K. Rowling’s permission, but I can tell you the plot.
  • Breach of confidence: Breach of confidence is less about the form of the information and more about its substance: If I have signed a confidentiality agreement I can copy confidential information to my heart’s content, as long as I only use it within the bounds of my licence to use it. In other words, I can do what I like as long as I don’t disclose the content of that information to anyone else. Here the forbidden action is “telling you the plot”: I could do that either by giving you a full copy of the material, or telling you the plot without copying anything at all. Breach of confidence thus creates heightened compliance issues, implying as it does that the confidential information is not public, presenting risks of market abuse and insider dealing.
  • It is the substantive content and not the particular form of the information that is valuable.

Remedies for breach

Big difference here.