Your Confidentiality Agreement-Don’t Forget About It

Confidentiality agreements are one of those things that most people think of in the beginning of a commercial relationship.  But once the agreement is signed, its a bit like Tony Soprano’s favorite phrase, most people just forget about it.  There are a few aspects of any confidentiality agreement that need to be remembered and entered into a system for tracking.

Dates - First, the dates of execution, termination and window of information exchange should be noted.  These dates enable those individuals interacting with the other party to the agreement to be aware of when any disclosure must end and when any obligations under the agreement will terminate.   Sometimes at the end of the agreement, information and/or samples must be returned or archived.

Subject Matter - Anyone involved in the exchange of information must be aware of the scope of the subject matter involved.   If the agreement is limited to your company’s technology “A”, then any discussion outside the scope of that technology should not be broached in a confidential manner without an agreement in place.

Agreement Obligations - Anyone involved in the commercial relationship with the other party to a confidentiality agreement needs to be familiar with the basic obligations called out in the document.  In particular, anyone interacting with the other party in the exchange of proprietary information should be familiar with the marking provisions.  In other words, those involved from your company need to know whether they must mark any of your company’s confidential material as “Confidential.”  Some agreements require it and others do not.  Those involved must also be familiar with the procedures involved in handling incoming proprietary information from the other party.

Follow Up - Those involved in a collaborative effort where there are confidentiality obligations may need to follow up after a confidential disclosure has been made.  In some agreements, there are provisions for following up with the other party after a disclosure has been made either verbally or visually.  These may include information displayed on a whiteboard or drawings exchanged on a shared computer screen during a phone or video conference.   These typically come in the form of a communication referencing the time and type of disclosure and reminding the recipient of the confidential nature of the communication.  Sometimes written follow up is required within a certain time frame after the initial disclosure of verbal or visual information.  Those in contact with the other party should be able to identify confidential information being disclosed and what  appropriate procedures and follow up are required by the agreement.  I should note that some agreements do not have a follow up provision.  In that case, any disclosure made without a “Confidential” notice at the time of disclosure may not be protected by the agreement.  Anyone in the organization involved in the disclosure of confidential information should be made aware of this and act accordingly.