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A little background. Confidentiality agreements, or nondisclosure agreements (NDAs), or secrecy agreements, are legal agreements between parties specifying information that one or both of the parties consider confidential and prohibiting the other party from disclosing it. The party disclosing the information is commonly referred to as the “Disclosing Party” and the party receiving it is referred to as the “Receiving Party.”
Confidentiality agreements can exist in a variety of contexts, one of the most common being between an employer and its employee, independent contractors, suppliers, and between parties considering a financial or business arrangement, such as with a potential investor or parties to a joint venture.
What you are referring to is exclusions clauses. An “Exclusions Clause” lists information that loses its confidential status through acts outside of the Receiving Party’s control. An Exclusions Clause can contain anything the parties agree to, but most commonly it will exclude items that (1) are already known by the Receiving Party, (2) have become part of the public domain, (3) were received from a third party, and/or (4) were independently developed.
That said, if there is no “exclusion clause” in your contract, then many courts consider the disclosure itself a breach, but the part that would be become hard to prove would be damages. It would be very difficult to prove that the information that was disclosed to the third party, being already known to them form another source, caused damages based upon the disclosure.
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