Disclosed information - NDA Provision
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NDA Anatomy™
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The confidentiality obligation typically is restricted to information disclosed by a disclosing party to the other under a confidentiality agreement. There are other ways a party might come by confidential information, and it is worth thinking about why they might or might not be included.
Generally you are protecting secret sauce: this is not an intellectual property arrangement per se — confidential information may not attract copyright protection at all, and even if it does the disclosed may not own it — so the emphasis here is preserving an advantage the disclosed has because no-one else has the information at all.
Therefore information you may get in connection with a project but from someone else — that wasn’t the discloser’s secret to protect — does not attract protection just because you get it in connection with the project.
and information you generate yourself in connection with the project — even though it might be quite sensitive and valuable — also does not necessarily fall within the province of an NDA.
For example, a broker who handles its client’s order flow and executes on exchange accumulates a lot of sensitive trading data, but this was not “disclosed” by the customer so would not ordinarily be covered. If your NDA covers a brokerage arrangement you might want to think about that.
Ideas that a creative team at an advertising agency generate while working on a customer brief, too, would not typically be captured by an NDA (and it would be fairly onerous on the ad agency if they were).