These periods may or may not be the same, and they need not be speciﬁed by exact dates (years, months, weeks, etc.).
For example, the Sample One-Sided Conﬁdentiality Agreement form and Sample Mutual Conﬁdentiality Agreement form provide that disclosure will occur for so long as the parties are discussing a possible business relationship, but the obligation of conﬁdentiality survives until an exception to the obligation of maintaining conﬁdentiality arises.
This allows the disclosing party to terminate its obligation to disclose conﬁdential information if it does not wish to proceed with working with the recipient. After spending considerable time negotiating and deﬁning what constitutes conﬁdential information and the obligations to keep the information conﬁdential, it is often easy for parties to neglect the miscellaneous provisions that one typically ﬁnds at the end of the agreement.
The parties should always pay careful attention to what law will govern the agreement, how disputes will be resolved, and the assignability of the rights and obligations under the agreement.
IN NO EVENT SHALL [OWNER] BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE CONFIDENTIAL INFORMATION.
[OWNER] does not represent or warrant that any product or business plans disclosed to [RECIPIENT] will be marketed or carried out as disclosed, or at all. [RECIPIENT] shall not acquire any intellectual property rights under this Agreement except the limited right to use set out above. This Agreement sets forth the entire understanding of the parties regarding confidentiality.Also, while an injunction prohibits future dissemination of the conﬁdential information, it is difﬁcult to contain the information once it has been disclosed and it is difﬁcult to quantify monetary damages. Because of the enforcement issues, the sound advice is to not enter into a conﬁdentiality agreement or share conﬁdential information with a party you do not trust to keep the information conﬁdential. The recipient’s failure to treat the conﬁdential information in compliance with these requirements will result in a breach.Typical requirements include not disclosing the object and scope of the discussions between the parties, not using the conﬁdential information other than for the speciﬁed purpose agreed to by the parties, and not disclosing the conﬁdential information to persons or entities other than the employees or agents of the recipient without the prior written consent of the disclosing party.An injunction against the breaching conﬁdant helps prevent any further breach of the agreement.The court may also award monetary damages if damages can be quantiﬁed.Following is a discussion of the more important issues to be considered when negotiating and drafting a conﬁdentiality agreement. The parties must deﬁne “conﬁdential.” The party disclosing the conﬁdential information most likely would want the deﬁnition to be very inclusive and the recipient would like the deﬁnition to be very narrow.The deﬁnition provided in Information File C5-81, Sample One-Sided Conﬁdentiality Agreement is fairly inclusive and illustrates the breadth of items that can be deﬁned as conﬁdential. The agreement must detail how the conﬁdential information will be handled by the recipient.The terms detailed below, however, should be considered as basic requirements for any conﬁdentiality agreement.With the key terms detailed in a written agreement, the parties will have reasonable expectations about services to be performed under the agreement and the consequences if those expectations are not met. Parties negotiating and contemplating entering into a conﬁdentiality agreement should consult with competent legal advisors.