Template:Nda standard of care

Standard of care

You may see squirrelly types try to impose some “best efforts” conditionality on the receiver’s obligation to keep the confidential information safe. Have no truck with this.

The confidentiality obligation in an NDA is not sort of “well, Fluffy tries his best” exercise in special pleading: it is a plain, clear and absolute responsibility.

The very point of an NDA is the outright allocation of liability from discloser to receiver: it is to say, “in return for you kindly handing over your commercially sensitive information to me, I agree that if that information is misused, and you suffer loss — however it should come about, and regardless of the ill fate that befalls me — I am liable to you for your suffering.”

At the point of disclosure it is the receiver who controls the information, and therefore has the power to ensure it is safe and sound. If it fails in that covenant, however valiantly it tried not to, the discloser — who at this point has no control over its information, and is at the mercy of the cruel vicissitudes of your fortune as well as its own — still suffers a loss.