Have you ever entered into a contract that required confidentiality, and you bypassed the provision as you scanned through the rest of the agreement?
Next time you’re faced with such a restriction in a contract (or if you’re currently obligated to comply with one), it’s imperative you pay close attention to the terms of the non-disclosure requirement. Failure to do so may result in extremely costly litigation.
In order to avoid misunderstandings or the unintentional disclosure of information, there are several aspects that need to be addressed in the contract:
- Specify with absolute certainty the scope of what is considered confidential information. This is not the time to be vague. Although there are no legal rules regarding how much can be included in this section, the more specific the requirements are, the easier it will be to prevent a breach. Also, Florida law requires that the restriction be “reasonably necessary to protect the legitimate business interests justifying the restriction.” So if what is being specified doesn’t fall under that description, bring it up.
- Specify the time frame the confidentiality obligation will last. Is it while you’re conducting business with the other party? Is it for a year after the business relationship has ended? Is it forever? You always want to know to what extent you’re exposed to potential legal liability.
- Is the other party also bound to keep your confidential information private? You would think this is common sense, but in the event of a breach, the Court is going to look at the language of the contract. You can’t say: “Well, I had to keep their information private, so I assumed it was the same on their part.” If that’s your intention, include it in the agreement. If you already signed, check if the other party would be amenable to amending it in writing.
- Has the information been previously disclosed? If a third party makes the information public (or even if the other party to the contract makes the information public), you’ll no longer be under an obligation to refrain from speaking about it, because the information would no longer be considered to be confidential. This is very important to keep in mind in the event the other party tries to hold you legally accountable after the information has already been made public by someone else.
Contracts can be tedious and complicated; but never use that as an excuse to skim through them. If you don’t understand a term, always consult with an experienced business attorney. It’s the only way to protect yourself and your business. Hunter Business Law can draft and/or review business contracts. Contact us before you sign.
This Blog was written by Hunter Business Law Founder, Attorney Sheryl Hunter. View her profile HERE.