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How to Handle Confidential Info Already Disclosed - NDA

February 11 2021

Imagine this scenario: you’re trying to get another party to sign an NDA, but you’ve already disclosed confidential information to them. If that’s the case, will the NDA still protect you from them unlawfully disclosing the information you’ve already shared?

The short answer is “yes,” but you need to make sure the NDA covers you for that.

First, make sure you have our NDA template. And then read below to learn how to cover yourself.

Changes to Make in NDA

You’ll want to tweak the template in a couple spots. First, in the “Confidential Information” paragraph, change the first sentence to:

“Confidential Information” means any information that is proprietary or unique to the Company and that is or has been disclosed by the Company to the Recipient before or during the term of this Agreement, [keep the rest of this paragraph].

Then skip to Paragraph 4(a) - Exclusions. Take out the “number 1” that says “(1) was known to the Recipient before disclosure by the Company as evidenced by contemporaneous records” and leave the rest. It’d say this instead:

(a) This Agreement imposes no obligations upon the Recipient with respect to Confidential Information that: (1) has become publicly available through no fault of the Recipient; (2) is disclosed to the Recipient by a third party that has the right to make the disclosure to the Recipient and that does not have any obligation of confidentiality with respect to the Confidential Information; or (3) is disclosed by the Recipient with the Company’s prior written consent.

Easy Peasy!

Topics: nda
Chris Daming, J.D., LL.M.

Written by Chris Daming, J.D., LL.M.

Chris is the founder and CEO of LegalGPS. Previously, he served in the Army (82nd Airborne), then went to law school and got his J.D. and LL.M. He practiced law and ran the Startup Legal law firm before founding LegalGPS.

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