Exceptions to “confidential information.” As a general rule, there are a few exceptions to what constitutes confidential information. For example, the other party will likely argue that it should not be required to maintain confidentiality that becomes (or is already) available to the public, except as a result of its violation or the knowledge it possessed prior to the signing of the NDA. As it happens, the legal world continues to see the same shortcomings when it comes to such a legislative agreement protecting confidential information. It makes my job a little easier here. In all likelihood, your recipient will work with a number of other parties or sellers, and these people will also need to be included in your agreement. First, you can include in your agreement a simple language that determines to whom the receiving party is authorized to disclose your confidential information. This can go a long way to getting the recipient to discuss your information only with parties who are on a need-to-know basis. Parties should also consider the duration of information that must remain confidential. Any revealing party would prefer to keep its information confidential forever. As a general rule, confidentiality rules in business transactions are maintained for about two years. All personal data should be kept confidential indefinitely.

Here too, the appropriate sunset for confidentiality obligations depends on the nature of the information. The parties should include an appropriate sunset, otherwise a court may impose a sunset on them. If your agreement is examined by chance for an offence in court, many jurisdictions will not hesitate to find that your agreement is not “vague” if the language is so ambiguous or so unclear that the application of the terms and conditions is impossible. Expanded scope for companies and associate employees. Since confidentiality obligations are generally assumed by two or a limited number of official bodies, it is important to extend the scope of confidentiality to persons associated with these entities. In addition, the receiving party should limit this extension only to the extent necessary (although, in practice, “everyone” knows that the parties are exchanging confidential information). For example, confidentiality and permitted uses. As a filler, you want to ensure that the NDA clearly states that the recipient must keep the information confidential and not pass it on to people other than their representatives (such as employees, lawyers, etc.) – and only know it on the basis of need.