Preaward Guidelines

Contract Items

1. CONFIDENTIALITY – don’t agree to more than you can actually ensure.  Consider something like the following:
   
   “…share only with individuals/employees who need to know and will ensure they are educated on elements of confidentiality.”
    
2. CONFIDENTIALITY – (standard of care).  Often clauses will have verbiage something like the following:
   
   “…same as the receipient’s (or issuer’s) standard of care.”  
   
   What does this mean?  Does Stevens have a standard of care?  How can we know what the other party’s standard of care is?
    
3. CONFIDENTIALITY – more and more contracts are including carve-outs for ‘residual information’ as items that would be exempt from proprietary restrictions.  Residual information is generally considered to be something a consultant/PI learns and is in their head.  This is often extended to include information someone gains because they have a photographic memory.  The intent when this is included is that the person/company that is in possession of the residual information would get to keep and use it and it would be exempt from consideration if there’s a suspicion of patent infringement.   Often seen in agreement that involve the development of software.
    
4. CONFIDENTIALITY – In reviewing Non-Disclosure Agreements consider imposing maintenance of confidentiality by something like the following:
   
   “…conditions of confidentiality shall be applied to the following, (XXX), (XXX), and (XXX) who were in attendance at the meeting held on (XXXXXX) at the research offices of (XXX).
    
5. CONFIDENTIALITY – is usual for there to be a carve-out of exclusions from the maintenance of confidentiality and among those is one that allows for data to be excluded if it is required by law.  A degree of care is warranted because there could be things we would automatically give away that might not actually be necessary, such as privilege and content.

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