Chaney is a partner at Pasich LLP and has been recognized as a Super Lawyer in her field.Fiona represents insureds in disputes with insurers for a wide variety of policies, including commercial liability, directors and officers, property, employment practices, business interruption, and media liability.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.The manufacturer and customer needn't bother negotiating the wording for those responsibilities. A requirement like this can be handy if the Receiving Party will be dealing with information whose distribution is restricted by law, for example personal health information or export-controlled information. The obligations of section 6.1.3 apply only during the Confidentiality-Obligation Period; during that time, though, those obligations will continue to apply to all Specimens of Confidential Information, even after any termination or expiration of the Agreement. of Confidential Information is any copy of, and any physical object embodying, Confidential Information — for example, any paper- or electronic copy and any specimen of hardware — where the copy or physical object is in the possession, custody, or control of: (i) the Receiving Party, and/or (ii) any individual or organization to which the Receiving Party made Confidential Information accessible.
Please email me with suggestions for additions or revisions at [email protected] After X years have gone by, it might well take time and energy for the receiving party to figure out (1) which information of the disclosing party is still confidential, and (2) whether the receiving party might be using or disclosing confidential information in violation of the NDA. Likewise, if the receiving party were to forget to comply with its return-or-destruction obligations, then the disclosing party might use that fact to bash the receiving party in front of a judge or jury.[THIS SECTION IS BEING EXTENSIVELY "REMODELED" so that all the drafts are similar in format to the short-form confidentiality agreement. That would provide the receiving party with a bright-line sunset date as well as providing the disclosing party with a year or two of safety margin. (b) For the avoidance of doubt, any Specimen of Confidential Information not returned or destroyed remains subject to the Confidentiality Obligations.] [NOTE: Don't rely on the drafts below as a substitute for legal advice about your specific situation. If the receiving party's confidentiality obligations are allowed to expire, the disclosing party might thereafter find it difficult — or, more likely, impossible — to convince a court to enforce any trade-secret rights in the relevant information. A receiving party might find it to be tremendously burdensome and expensive to try to return or destroy all copies of a disclosing party's confidential information, even those in emails, backup systems, etc.These are the general rules of corporate and contract law, but they come with exceptions, of course. See also: Contract drafters typically include each party's type of organization and the jurisdiction in which it's organized — for example, "ABC Corporation, a Delaware corporation" — as a way of establishing diversity jurisdiction (a U. concept that might or might not be applicable) and personal jurisdiction as well as venue. To save negotiation time, this provision simply goes ahead and pre-authorizes some of those particular categories of use.
Northbound tries to create one new exception and invokes two established ones. Including the jurisdiction can simplify a litigator's task of "proving up" the necessary facts: If a contract signed by ABC Corporation recites that ABC is a corporation, for example, an opposing party generally won't have to prove that fact, because ABC will usually be deemed to have conceded it in advance. Acknowledgement Definition and its field notes.) It's useful to put the parties' initial addresses for notice in the preamble. A receiving party might want to state explicitly that that certain specified uses are authorized.
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.