Confidentiality agreement

From The Jolly Contrarian
(Redirected from NDA)
Jump to navigation Jump to search

Confi Anatomy

My Confidential Heart

Words and Music by R Plant

Baby, baby, baby (ad lib)
If you want me to tell you
Everything I know
Some things you gotta promise me
Babe, you gotta show —
Whatever may happen
Or come down on your head
You won’t break my confidence
Or tell them what I said.

(Listen —
Do you want to know a secret?
Do you promise not to tell?)[1]

& when I say my “Secrets
This is what I mean:
Everything I tell you
About everything I’ve seen
& everything I show you
& everything I knew
& everything I’ve told you
About everything I do.

I don’t mean no other things —
Not what the whole world knows
Not what another man has said
That’s not the way it goes
& baby, there’s one other thing
You can cut out & save:
Though you may take
The Secrets that I tell you
To your grave,

I never promised anything I told you
Would be true
I never said to no-one
That I’d never lie to you.
Tell me that you will, my baby
That you’ll do what you can
To keep my secrets safe & sound
& not tell another man

You can maybe tell your mama
& tell your daddy too
& tell your regulator
If he tells you you have to
But before you spill my Secrets
(That you promised to the grave)
You gotta let me know
So I can go
& force them to behave

Now things may change & we may change —
Our love no more be true.
If it should fail & break apart
Here’s what you’re gonna do:
You’re gonna send it back
You’re gonna hand it back
You’re gonna give it back to me
(But you may choose
To put beyond your use
The stuff you can’t unsee)

I ain’t granting you no licence
Ain’t pledging you no right
& if we should ever quarrel
If we should ever fight
If there’s ever tension
That lovers can’t resolve
There’s a place the I can take you
To make our differences dissolve

It ain’t no arbitration
It ain’t no arbitrary thought
It’s the chancery division
Of an English court.
So if you want to hear me squeal
Sign on the dotted line
& I’ll open my whole heart to you
One vein at a time.
Resources: Confidentiality agreement | Confi — Led Zeppelin style | GDPR | Copyright vs. confidence | |
Common terms | Certification | Confidential information | Confidentiality obligation | Derived information | Disclosed information | Discloser | Exclusivity | Indemnity | Non-solicitation | Permitted disclosees | Permitted disclosures | Procure compliance | Purpose | Receiver | Remedies | Reps and warranties | Return of information | Term |

Also known, to those for whom the glass is half-empty, as a non-disclosure agreement. An agreement whereby you promise not to tell. If Robert Plant were writing one, he would write it like the box on the right.

Anyhoo. Here are the main parts of a normal financial markets confidentiality agreement.[2]

Basic structure of a confidentiality agreement

1. Who is who: who is disclosing and who is receiving, or is it mutual?
2. The Confidential information: what is it?

(a) What generally counts as confidential information?
(b) What is excluded from that general definition? Usually along material which:
(i) is in the public domain
(ii) the receiver already held before disclosure
(iii) the receiver receives independently, without breach of confidence
(iv) the receiver develops independently, without reliance on the confidential information

3. Purpose: What is the purpose of disclosing the confidential information?
4. Receivers: who is allowed access to the confidential information for the project?

(a) Which of the receiver’s personnel can access the confidential information?
(a) Are there any external personnel with whom the receiver can share confidential information?

5. The confidentiality undertaking itself

(a) To keep the confidential information confidential; maintain appropriate information barriers etc.
(b) To use it only for the permitted purpose
(c) Not to reverse engineer, decompile or disassemble confidential information
(e) To keep the project confidential
(e) Return or destroy confidential information at the end of the project

6. Under what circumstances can the receiver disclose confidential information, and to whom, beyond the project?

(a) Regulator’s requests
(b) During dispute resolution processes
(c) Any conditions on “extra-projectual” disclosure

7. Term of the confidentiality obligation
8. General

(a) What representations does the discloser make?
(b) What acknowledgments does the receiver make?
(c) Governing law

What’s in a confi?

Confis can be “one way”, where one party discloses and the other receives, or “two way”, where both parties disclose sensitive information. A broker’s template will tend to be far more generous when it is receiving only, than when it is giving information up. I know this may come as a shock to some of you.

Length

Firstly, let’s be blunt about this: there is a special place in hell for any advisor who serves up a confidentiality agreement more than 3 pages long. Even three pages is purgatorially tedious. GET TO THE POINT. It’s a goddamn confi, not the sale of your soul. Oh hang on.

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 of 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.

Representations and warranties in a confidentiality agreement

Assiduous attorneys will drivel in some of the usual boilerplate reps[3], to no obvious point, but for the most part confidentiality agreements are characterised by the representations the parties are not making to each other. Thus, this is another one for the “I never said it was” file, a clear disclaimer that when giving you this information, I never said it was accurate or good for anything. So you can’t sue me if you rely on it and lose money. So must your confi have a term? Some insist on a hard stop, say two years, after which confidential information ceases to be confidential. Inhouse lawyers may profess themselves to be immutably bound to have such a term by internal policy. While the commercial value of much information does go stale over time (blueprints for a BetaMax, anyone?), this isn’t universally true — a client list is valuable however long you hold it — and the usual justification for the hard stop (“we just don't have the systems to indefinitely hold information subject to confidence and don't want indeterminate liability for breach”) is a canard — a palpably false one at that, for a regulated financial institution. Whatever information security systems you do have don’t suddenly stop working after three years. And as for indeterminate liability — well, no harm no foul: if the information really is stale then no loss follows from a breach, right? No loss, no damages.

What a confi shouldn't have

The following often make their way into a confi agreement, though none really have any business being there.


Special AKA

The same as a:

See also

References

  1. We think he may have had a little help from his friends.
  2. If you are a Harvey Weinstein type who expects to turpitudinously, to hush up people you have triggered, I’m afraid you have come to the wrong place. this is about the good kind of NDA.
  3. You know: Status, capacity, no litigation etc