Exclusions from Confidential Information Emails

Hi [Name], I have reviewed the exclusions clause and noticed it does not include an independent development carve-out. As a [technology company / service provider / consulting firm], we may independently develop solutions that happen to be similar to information you share with us. Without an independent development exclusion, we could face claims based on coincidental similarity. We propose adding the following exclusion: "Information that is independently developed by the Receiving Party without use of or reference to any Confidential Information, as demonstrated by documented evidence." This is a standard provision that protects legitimate parallel development while still providing you protection against actual misuse of your confidential information. The burden of proof remains on us to demonstrate independent development. Please let me know if this works for you. Best regards, [Your Name]

Hi [Name], The current exclusions clause does not address information we already possess prior to your disclosure. This creates a significant issue. Our company has been in this industry for [X] years and has developed substantial proprietary knowledge. We cannot agree to treat information as confidential if we already knew it before you shared it with us. We need to add the following exclusion: "Information that was in the Receiving Party's possession prior to disclosure by the Disclosing Party, as demonstrated by written records or other documentary evidence predating the disclosure." This protects our pre-existing knowledge while still providing full protection for information that is genuinely new to us. The documentary evidence requirement gives you assurance that we cannot simply claim prior knowledge without proof. This is an essential exclusion for us to proceed. Best regards, [Your Name]

Hi [Name], I want to address the public information exclusion, which currently reads: "information that becomes publicly available through no fault of the Receiving Party." The phrase "no fault" is problematic because it could be interpreted to mean we must prove a negative - that we had absolutely nothing to do with the disclosure, even indirectly. This creates an impossible evidentiary burden. For example, if your information appears in a trade publication based on an interview with one of your employees, the current language could be read to exclude us from relying on that public information. We propose changing the language to: "Information that is or becomes publicly available other than through a breach of this Agreement by the Receiving Party." This maintains your protection against breaches while allowing us to use information that becomes public through legitimate channels. This is the market-standard formulation. Best regards, [Your Name]

Hi [Name], The exclusions section needs to address information we receive from third parties. We work with many companies in this industry and may receive similar information from sources other than you. If a third party legitimately shares information with us, we should not be bound by confidentiality obligations to you for that information. Please add the following exclusion: "Information that is received by the Receiving Party from a third party who, to the Receiving Party's knowledge, is not bound by any obligation of confidentiality to the Disclosing Party with respect to such information." This is a standard exclusion. The "to the Receiving Party's knowledge" qualifier protects you because we cannot claim this exclusion if we know the third party is breaching their own NDA with you. This exclusion is essential for us given our business relationships. Best regards, [Your Name]

Hi [Name], I have a concern with the public information exclusion as currently drafted. The language states that information is excluded if it "is or becomes publicly available." This creates a loophole: if someone (not necessarily you, but perhaps a downstream recipient) discloses our information publicly, you could then claim it is no longer confidential. We need to add protective language: "Information that is or becomes publicly available through no breach of this Agreement by the Receiving Party or its Representatives." This modification ensures that public disclosure resulting from a breach (direct or indirect) does not terminate your confidentiality obligations. You remain protected for information that legitimately enters the public domain through other means. Please confirm this change works for you. Best regards, [Your Name]

Hi [Name], The prior knowledge exclusion needs additional specificity to be enforceable. As drafted, the exclusion allows any claim of prior knowledge without requiring proof. This is problematic because such claims are easy to make but difficult to disprove, particularly years after the fact. We propose the following modification: "Information that was in the Receiving Party's possession prior to disclosure by the Disclosing Party, provided that (a) such prior possession is demonstrated by written records or other competent documentary evidence that predates the date of disclosure hereunder, and (b) the source of such information was not bound by an obligation of confidentiality to the Disclosing Party." This language protects your legitimate prior knowledge while ensuring that claims can be verified. The second requirement (b) closes a potential loophole where you might have received the information from another party who was under NDA with us. Best regards, [Your Name]

Hi [Name], The independent development exclusion needs additional safeguards given the nature of the information we will be sharing. We will be disclosing highly specific technical information that took years and significant investment to develop. A broad independent development exclusion could allow misuse under the guise of parallel development. We propose adding the following requirements: "Information that is independently developed by the Receiving Party without any use of, reference to, or reliance upon any Confidential Information, as demonstrated by contemporaneous written records created and maintained by personnel who did not have access to the Confidential Information." This language requires: 1. No use, reference, OR reliance (closing the "we only looked at it once" loophole) 2. Contemporaneous documentation (not after-the-fact reconstruction) 3. Clean-room development by personnel without access These are reasonable requirements for legitimate independent development. If your team truly develops something independently, meeting these requirements should not be burdensome. Best regards, [Your Name]

Hi [Name], The third-party disclosure exclusion requires modification to prevent potential circumvention. The current language allows an exclusion for information received from "a third party not under an obligation of confidentiality." This could allow our information to be laundered through intermediaries. We propose the following revised language: "Information that is rightfully received by the Receiving Party from a third party who (a) to the Receiving Party's actual knowledge after reasonable inquiry, is not bound by any obligation of confidentiality to the Disclosing Party with respect to such information, and (b) is legally entitled to disclose such information without restriction." The key additions are: 1. "Rightfully received" - prevents reliance on improperly obtained information 2. "Actual knowledge after reasonable inquiry" - requires you to ask the source if they have confidentiality obligations 3. "Legally entitled to disclose" - ensures the third party has the right to share These requirements are commercially reasonable and protect against obvious circumvention scenarios. Best regards, [Your Name]