| Some observations about the generic NDA at the pastebin link --- I'm a lawyer, but not your lawyer, so don't rely on this as a substitute for legal advice; YMMV: Section 1: The exclusion of information independently developed by the receiving party from the definition of confidential information can be tricky. A receiving party that wants to rely on that exclusion must gamble that a judge or jury will believe that the receiving party really did independently develop the information. That's not always a given. Section 1: The list of exclusions at the end is missing another common exclusion, namely "disclosed to a third party by the disclosing party without confidentiality obligations comparable to those of this Agreement." Section 2: The receiving party's right to disclose to third parties is really broad, much broader than some people would be comfortable with. Section 2: If the receiving party discloses confidential information to a third party, and the third party misuses it, then the receiving party is liable for that misuse, even if the receiving party was innocent. Section 3: This clause contains a "best efforts" requirement, which is vague and therefore potentially dangerous. (Self-cite: See the notes linked at http://www.commondraft.org/#BestEffortsDefn.) Section 5: Be sure you're comfortable with the time periods for protected disclosure (two years) and protection of the disclosed confidential information (seven years). Section 6: The return-or-destruction requirement can be a pain; technically it requires purging of emails, backups, etc. Consider a carve-out such as that in http://www.commondraft.org/#ConfInfoReturnRqmt: "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." Section 10: Any litigation must be in the specified location; that could make things expensive for the party not in that location. Further general information and commentary (another self-cite): http://www.oncontracts.com/confidential-information/ |
My concerns are mainly on Section 2 and 9. 2- Since the NDA never defines who is the disclosing or receiving party, nor what information has been given by one to the other, can they eventually pursue legal action and only then trying to demonstrate that it was them who provided the information (very difficult for them anyways)
9- This is basically saying that they or us can do whatever we want with that information, right? If this is the case, what would be the point of the NDA anyways?