Disclosure and receipt of information will often have different views on the appropriate level of confidential information. A revealing party will probably favour a broad definition and should object to the need to label or identify information as confidential. A receiving party will likely prefer a narrower definition of what confidential information would constitute (and would generally prefer a clear identification of it). This may be the case especially when the publishing party can provide more information than is necessary, so that the NOA limits the party that receives more than is reasonable or necessary. Where personal data is disclosed, the NDA should include specific data protection provisions to comply with existing data protection legislation. Keep in mind the use of the term “observation,” which indicates the intention to include the remaining or derivative information that is explained below. On the other hand, if you are the recipient of the information, you have a legitimate desire to ensure that the information you want to keep secret is clearly identified, so that you know what you can use or not. As Yoichiro (“Yokum”) Taku, a partner of Wilson Sonsini Goodrich-Rosati, put it, “The public will want a broad definition of confidential information and may also want third-party confidential information to be considered confidential. The recipient intends to limit the definition of confidential information in order to limit the scope of information requiring compliance with confidentiality obligations. What is important in a confidentiality agreement or confidentiality agreement (NDA)? VCs may not want an agreement that fears such an attribution of information and may prefer a confidentiality agreement, provided that the parties can freely use all the disclosed information. If disclosure is required by law or order, an NOA cannot object to this legal obligation. Therefore, NDAs should not have any language of disclosure such as “under any circumstances” or “for any reason,” otherwise the entire agreement may be threatened. However, an NOA should impose an obligation on the recipient party to inform the notifying party of the disclosure request, where possible.
The receiving party should only be allowed to disclose such information to the extent expressly required by the applicable law or the applicable regulations. The receiving party should also be required to make reasonable economic efforts to oppose these requests for disclosure, if they are, and, if warranted, to be protected or to continue to treat the information confidentially. Mary Hanson notes that the definition, if it is too broad, may be unenforceable. “If [the] definition is too broad or vague, the agreement cannot be applied. This description should define confidential information so that it is enforceable, but should not disclose the confidential information itself. Although it may seem obvious that confidential information can only contain information that is already confidential. To determine the type of information that can be duly classified as confidential, you consider the following list of the multilateral NDA in Pharand Ski Corp. v. Alberta 1: A multilateral NOA can be beneficial because the parties involved only verify, re-issue and implement an agreement.