(Almost) Anything you share with the other party will be considered confidential

A Confidentiality Agreement will say that anything that is non-public knowledge, unique to your business, or proprietary (private) property that you share with the other party will be confidential. Some examples are things like:

• Plans and strategies
• Customer lists
• Documents, reports, analyses, and similar writings
• Drawings, illustrations, plans, technical diagrams, instructions, and procedures
• Product details, plans, and features that are not yet public
• Code, APIs, software configuration, and other tech stack details
• Discussions and plans with the other party
• Anything else that is non-public and should reasonably be understood to be confidential, whether or not you put a confidential label on it or say it is meant to be kept secret

There are exceptions, though

A Confidentiality Agreement is meant to keep certain information private. But there are some types of information that it does not cover. Here are the main exceptions:

1. Public Information

If the information is already public when it is shared, or if it becomes public later without any fault of the person receiving it, the agreement does not protect it. This means that information everyone can access is not restricted by the agreement.

2. Information Already Known

If the person receiving the information already knew it before it was shared, and they can prove it, then that information is not considered confidential.

3. Independently Created Information

If the person receiving the information creates something similar on their own, without using the confidential information, it is not covered by the Confidentiality Agreement. This allows for independent work and innovation.

4. Information from a Third Party

If someone else, who is not bound by the Confidentiality Agreement (e.g., they have not signed a confidentiality agreement with you), shares the information with the receiving party, and the receiving party does not know that this third party is breaking any confidentiality rules, then that information is not protected by the Confidentiality Agreement.

5. Legal Requirements

If the law, a regulation, or a court order requires the receiving party to disclose the confidential information, they can do so. Usually, they need to inform the disclosing party in advance, if possible, so that the disclosing party can try to protect the information.

6. Permission from the Disclosing Party

If the person who shared the information gives permission for it to be disclosed, then it is not covered by the Confidentiality Agreement. This permission usually needs to be in writing to avoid any confusion.

Key Points to Remember:

• Public Information: Information that is already public or becomes public.
• Already Known: Information the receiving party already knew.
• Independent Creation: Information created independently by the receiving party.
• Third-Party Information: Information shared by someone else not bound by the Confidentiality Agreement.
• Legal Disclosure: Information that must be disclosed by law.
• Permission: Information the disclosing party agrees to share.

Understanding these exceptions helps both parties know what is and isn’t protected by the Confidentiality Agreement, making the agreement clearer and preventing misunderstandings.