Confidential Information: Exclusions

Confidential Information: Exclusions

The following exemplar has an ample list of standard subject matter that is excluded from what constitutes confidential information (but see exceptions to these exceptions in the section entitled “Exceptions to Confidentiality Exceptions”). This list can be used to cross-check against any exceptions expressly enumerated in an NDA:

Exemplar N4E-1

The confidentiality obligations set forth above will not apply to CONFIDENTIAL INFORMATION which:

(a) Was in the public domain at the time it was received;(b) Becomes generally known to the trade or public through disclosure by a source other than the receiving Party having the lawful right to disclose such information;

(c) The receiving Party can demonstrate was known to it before it was received from the disclosing Party;

(d) Is disclosed to receiving Party, without restriction, by a third party who has the lawful right to disclose such information;

(e) The receiving Party can demonstrate it independently developed without use of the disclosing Party’s Confidential Information;

(f)  The receiving Party discloses in a judicial or administrative proceeding pursuant to a judicial or administrative order or as required by applicable law, provided the receiving Party gives the disclosing Party reasonable notice and an opportunity to oppose or limit the scope of such disclosure prior to such disclosure;

(g)  Is disclosed by the disclosing Party following written notice from the receiving Party that it no longer desires to receive disclosing Party’s Confidential Information; or

(h) A period of three (3) years has passed from the date of the disclosure of the CONFIDENTIAL INFORMATION.

The following exemplar includes an interesting exception for confidential information that is left (inadvertently or purposefully) on returned leased equipment, e.g., electronic files left on a leased computer:

Exemplar N4E-2

This Agreement imposes no obligation of confidentiality on Recipient with respect to information that: (a) was in the possession of Recipient before its receipt from the Disclosing Party, including as part of Recipient’s own development process; (b) is or becomes available to the public through no breach of this Agreement by Recipient; or (c) is independently developed by such Recipient without reference to or use of a Disclosing Party’s Confidential Information; or (d) is received by Recipient in good faith from a third party having no duty of confidentiality to the Disclosing Party; or (e) is resident on equipment returned to Recipient at the end of an equipment lease or which Recipient otherwise takes possession of under the terms of an equipment lease. If Confidential Information is required to be disclosed pursuant to law, regulation or lawful order or process, the party from whom disclosure is required shall, if and to the extent permitted by law, promptly notify the owner of the Confidential Information of the disclosure requirement, to permit the owner to oppose or limit such disclosure.