In the same vein, to save time, contract drafters (and reviewers) can consider incorporating selected Common Draft sections, or even entire contract drafts, by reference and specifying any desired variations or modifications — this could be thought of as "drafting by exception" or even as like INCOTERMS on steroids.* * For clarity: The Common Draft project is not sponsored, endorsed by, or otherwise associated with the International Chamber of Commerce, which produces the INCOTERMS® 2010 rules. That's because doing so can result in destruction of the disclosing party's trade-secret rights in its confidential information after the end of the confidentiality period. An obligation to return or destroy Confidential Information might not be practical if (for example) Confidential Information is embodied in a deliverable (for example, custom-developed computer software, or a physical object) that the receiving party will have the right to keep on using; this might be the case in a services agreement.
Suggestion: If you incorporate one or more Common Draft provisions by reference, consider using your browser's "Save to PDF" or "Print to PDF" capability to preserve a copy of this deskbook for future reference. Receiving parties, of course, generally prefer to have fixed expiration dates for confidentiality obligations. PRO TIP: Unfortunately, sometimes parties forget about return-or-destruction obligations.
See the Cautions for more details.] The period (i) beginning on the effective date of the Agreement and (ii) continuing until the information question qualifies for at least one exclusion from Confidential Information status under CD 188.8.131.52. [CITATION NEEDED] The language, any other right or obligation under the Agreement, addresses the situation in which an agreement includes noncompetition or non-solicitation provisions in addition to confidentiality provisions — the language attempts to make it clear that the confidentiality obligations continue even if (for example) the non-competition covenant expires. Downer, Equitable Exceptions to the Rule Against Perpetual Contracts, Intellectual Property Litigation, Volume 21, No. Such an argument, though, would have to overcome the long-established rule that "[t]rade secret licenses may endure even where the trade secret itself is destroyed by general disclosure." Nova Chemicals, Inc. The requirement of disclosing-party consent to destruction has in mind the situation in which the disclosing party doesn't itself have a copy of Confidential Information to be destroyed.
2016-03.4; last modified Wednesday September 14, 2016 Houston time. Both a contract drafter and a contract reviewer can save some time by first reviewing — together — the Common Draft short-form contract drafts (as well as other clause titles) and discussing just what types of provision they want in their document. The better approach is the one taken by this provision. Court of Appeals for the Federal Circuit explained this balancing concept in an analogous context, namely the patent-law requirement that claims of prior invention must be corroborated. 10, 2016) (affirming award of treble damages and trebled attorney fees; internal quotation marks omitted), quoting Washburn & Moen Mfg. Some language in this disclaimer is in all-caps bold-faced type so that the language will be conspicuous. A company's failure to do catch-up marking of confidential information after an oral disclosure to another party can kill the company's claim to trade-secret rights in the information. Compaq, the computer manufacturer Compaq (then part of Hewlett-Packard) defeated Convolve's claim that Compaq had misappropriated Convolve's trade secrets concerning hard-disk technology. A receiving party, though, might well object to this provision because it's necessarily vague, which could later lead to disputres about whether particular information qualified as "clearly" confidential.
Also includes links to selected real-world contract forms. The INCOTERMS® are "a series of pre-defined commercial terms published by the International Chamber of Commerce (ICC) [that are] widely used in international commercial transactions …. the purpose of corroboration [is] to prevent fraud, by providing independent confirmation of the [witness's] testimony." See Sandt Technology, Ltd. Resco Metal & Plastics Corp., 264 F.3d 1344, 1350 (Fed. 2001) (affirming relevant part of summary judgment; internal quotation marks and citation omitted). (b) Except as otherwise stated below, for information to be considered Confidential Information, the information must: (1) be set forth (or summarized) in tangible form (including for example an electronic storage device); and (2) be marked with a reasonably-prominent, visually-readable notice such as (for example) "Confidential information of [name]" or "Subject to NDA." In assessing whether a disclosing party in fact maintained particular information in confidence, a court very likely will give significant weight to whether the disclosing party caused the information to be marked as confidential. In many situations, these "standard" precautions are likely to satisfy the disclosing party's desires, but for some types of Confidential Information, a disclosing party might want to insist on special precautions — especially in the era of criminal hackers, and even state actors, breaking into insufficiently-secure computer systems and stealing valuable information, such as happened to Sony Pictures Entertainment, allegedly at the hands of North Korea, and to Home Depot, which booked a charge of 1 million after a 2014 theft of customers' credit-card data. (1) will not waive or otherwise affect the Disclosing Party's ability to enforce its other intellectual-property rights (for example, copyrights and patents) against the Receiving Party except to the extent, if any, that the parties expressly agree otherwise in writing; and (2) will not affect any obligation of confidentiality imposed by law.
Free for (limited) use under a Creative Commons license. [for] the transportation and delivery of goods." (Wikipedia.com). Another useful patent-law analogy might the requirement of corroboration to support an assertion that an issued patent is invalid due to prior public use. In the Seventh Circuit's Fail-Safe case, the court pointedly noted that the plaintiff had not marked its information as confidential; the court affirmed the district court's summary judgment dismissing the plaintiff's claim of misappropriation. A disclosing party should always insist on imposing confidentiality obligations on a receiving party; otherwise, a court is likely to hold hold that the disclosing party had failed to make reasonable efforts to protect its confidential information. For the avoidance of doubt, the Receiving Party's undertaking of the obligations of the Agreement concerning Confidential Information is not intended and should not be interpreted as in itself establishing a confidential‑ or fiduciary relationship between the parties.
Unless you say otherwise, I'll credit you in these materials for any suggestions that I incorporate. The receiving party likely would prefer instead to have a bright-line "sunset," after which the receiving party can do whatever it wants without having to incur the burden of analyzing the facts and circumstances. SUGGESTION: Consider requiring segregation of Confidential Information — or a Receiving Party could elect to segregate Confidential Information on its own initiative, even without a contractual requirement — for easier compliance with this section.
Also, please sign up to be notified of updates (I won't spam you). A disclosing party might regard an expiration date for confidentiality obligations as acceptable, depending largely on: In that situation, the disclosing party might be willing to have the receiving party's confidentiality obligations expire in three or four years. (a) Specimens of Confidential Information need not be returned or destroyed to the extent that they are not reasonably capable of being readily located and segregated without undue burden or expense — for example, Confidential Information contained in email correspondence or electronic back-up systems.