Confidentiality provisions set out the scope of confidential information (i.e. information that cannot be publicly shared), how that information must be protected, and rights to disclose information related to an agreement in public announcements. Agreements generally define a number of years for which information must be kept confidential, as well as setting out the circumstances under which confidential information provided by one party (the “disclosing party”) to another party (the “receiving party”) may be used. It is important that the definition of confidential information is appropriate for a specific agreement as it determines exactly which data, documentation and other information is protected by the confidentiality provisions in the agreement.

Questions to consider when developing confidentiality provisions

• What is the scope of confidential information?
• What are the obligations of the parties to protect confidential information?
• Are there any exceptions to the confidentiality obligations?
• Are the parties permitted to make public announcements related to the project?
• Can the parties use each other’s name and logo for general marketing materials?

Example approaches found in the MAPGuide

• What is the scope of confidential information?
  • Some agreements in the MAPGuide define confidential information fairly generally as ‘any information or document disclosed’ in the context of the negotiation, conclusion or performance of the agreement. Other agreements include a more detailed list of information that is considered confidential such as know-how, software, algorithms, designs, plans, forecasts, analyses, evaluations, research, business information, financial information, business plans. Confidential information sometimes also includes physical items such as samples and materials.
  • Some agreements require information to be in writing and prominently identified as confidential or proprietary in order to fall within the scope of confidential information. Other agreements may consider orally disclosed information to be confidential, although this sometimes requires a confirmation in writing within a certain period after disclosure.
  • Exceptions to the scope of confidential information that are often found in MAPGuide agreements are:
    1. Information that was known prior to the date of disclosure;
    2. Information that was lawfully obtained from a third party without confidentiality obligations;
    3. Information that becomes part of the public domain; and
    4. Information that is independently developed by one party without reference to the other party’s information.

• What are the obligations of the parties to protect confidential information?
  • Agreements in the MAPGuide generally require each party to keep the other party’s confidential information and documents strictly confidential and to take reasonable measures to ensure that it is given the same level of protection as its own confidential information.
  • Some agreements require confidential information to be returned or destroyed upon expiry or termination of the agreement, with the exception that one copy may be returned for records. This requirement is sometimes found in the termination clause of agreements, rather than under confidentiality.

• Are there any exceptions to the confidentiality obligations?
  • Most confidentiality provisions in the MAPGuide allow the disclosure of confidential information to affiliates and employees for the purpose of performing the agreement. 
  • In addition to employees, some MAPGuide agreements allow disclosure to third parties such as technical advisory groups or development partners, but only to the extent necessary to support the performance of the agreement. This disclosure may only be permitted if the third party has signed a confidentiality or non-disclosure agreement.
  • Some agreements recognise that freedom of information or other legal or regulatory requirements may mean that one party is required to disclose certain information to third parties. In this case, the parties agree to consult with each other prior to disclosure of any information falling under these requirements.
  • In some cases, confidentiality or publication provisions allow for factual statements about the existence of an agreement to parties such as funders, donors and potential investors.

• Are the parties permitted to make public announcements related to the project?
  • Many agreements in the MAPGuide require mutual written consent prior to any press release or other public announcement, although some allow for press releases with basic statements about the agreement (e.g. contracted volume and value) without prior consent.
  • Some funding agreements require appropriate acknowledgement of the funding and support from the funder when the grantee publicizes the work under the agreement.

• Can the parties use each other’s name and logo for general marketing materials?
  • Agreements in the MAPGuide generally require one party to obtain written consent from the other party before using their name or logo in a press release or for other promotional purposes.
  • See License Grants for information related to the use of trade dress for product branding.