See generally Ken Adams, Can a Trust Enter Into a Contract? Failing to name the correct corporate entity as the other party to the contract could leave the drafter's client holding the bag. 2015): Northbound's decision to sue the parent company, and not the subsidiary that was the named party to the contract, proved fatal to Northbound's breach-of-contract case. In that case, the contract (i) stated that it was creating a strategic alliance for the contracting party and its affiliates, and (ii) was signed by the president of the contracting party, who was also the sole managing member of the affiliate. Solely during the Authorized Use Period, the Receiving Party may use Confidential Information to the extent reasonably necessary for one or more of the following: (1) performing the Receiving Party's obligations under the Agreement; (2) exercising the Receiving Party's rights under the Agreement; (3) assessing whether to enter into another agreement with the Disclosing Party; and (4) any other particular authorized uses expressly agreed to in writing by the parties — it is immaterial if one or more of such other authorized uses, if any, falls within any of subdivisions (1) through (3) above.
This seems to have happened in Northbound Group, Inc. The Seventh Circuit affirmed summary judgment in favor of the parent company, saying: It goes without saying that a contract cannot bind a nonparty. If appellant is entitled to damages for breach of contract, [it] can not recover them in a suit against appellee because appellee was not a party to the contract. The court held that the affiliate was bound by, and violated, certain restrictions in the contract. Many confidential-information clause templates don't specify any pre-authorized uses of Confidential Information; typically, the parties end up negotiating some fairly-standard categories of authorized use.
In the same vein, to save time, contract drafters (and reviewers) can consider incorporating selected Common Draft sections, or even entire contract drafts, by reference and specifying any desired variations or modifications — this could be thought of as "drafting by exception" or even as like INCOTERMS on steroids.* * For clarity: The Common Draft project is not sponsored, endorsed by, or otherwise associated with the International Chamber of Commerce, which produces the INCOTERMS® 2010 rules. That's because doing so can result in destruction of the disclosing party's trade-secret rights in its confidential information after the end of the confidentiality period. An obligation to return or destroy Confidential Information might not be practical if (for example) Confidential Information is embodied in a deliverable (for example, custom-developed computer software, or a physical object) that the receiving party will have the right to keep on using; this might be the case in a services agreement.
Suggestion: If you incorporate one or more Common Draft provisions by reference, consider using your browser's "Save to PDF" or "Print to PDF" capability to preserve a copy of this deskbook for future reference. Receiving parties, of course, generally prefer to have fixed expiration dates for confidentiality obligations. PRO TIP: Unfortunately, sometimes parties forget about return-or-destruction obligations.
We find no basis for holding Norvax liable for any alleged breach of the contract between Northbound and … Some agreements, in identifying the parties to the agreement on the front page, state that the parties are, say, ABC Corporation and its Affiliates. That way, if one party later wants to send notice to another, at least the initial notice address can be found right on the front page of the contract, without the reader's having to flip through the other pages. (a) Solely during the Authorized-Use Period, the Receiving Party may disclose Confidential Information — on a strict need-to-know basis in connection with the Receiving Party's use of Confidential Information permitted by the Agreement — to one or more of the following, if any: (1) the Receiving Party's officers, directors, and employees, and individuals having comparable status if the Receiving Party is a non-corporate type of organization (for example, managers of a limited liability company and general partners of a general- or limited partnership); and (2) any other authorized recipients expressly agreed to in writing by the parties, if any.
These exemptions can be found in the following regulation and rules: A reporting insider who is required to file an insider report about a derivative transaction must disclose the existence and material terms of the transaction in the insider report.
The long-term goal of the Common Draft project is to serve as a lasting, public repository of carefully-drafted contract provisions that cover a wide variety of business needs, with annotations, commentary, and student exercises. A receiving party might want an expiration date for confidentiality obligations as a safe harbor. A disclosing party will want to follow up to be sure that the return-or-destruction requirement is actually complied with; if it were to fail to do so, a receiving party (or a third party) could try to use that as evidence that the disclosing party did not take reasonable precautions to preserve the secrecy of its confidential information, as discussed in this annotation.
Please email me with suggestions for additions or revisions at [email protected] After X years have gone by, it might well take time and energy for the receiving party to figure out (1) which information of the disclosing party is still confidential, and (2) whether the receiving party might be using or disclosing confidential information in violation of the NDA. Likewise, if the receiving party were to forget to comply with its return-or-destruction obligations, then the disclosing party might use that fact to bash the receiving party in front of a judge or jury.
An insider of a reporting issuer is defined in section 1(1) of the .
Generally, a person or company is a reporting insider of a reporting issuer if the person or company has routine access to material undisclosed information concerning a reporting issuer and significant influence over the reporting issuer.