Confidentiality is one of the key items negotiated in Contracts dealing with Software Licensing, and the Consulting Services necessary to implement the software package, and any Outsourcing or Hosting arrangements that may also be desired. Both parties, the Licensor and the Licensee, have valuable information that each wish to be kept secret and yet must be shared in order to go forward with the deal. In fact the sales cycle should begin with a signed Confidentiality Agreement. One might assume that this is furnished by the vendor, and in many cases that is correct. However, I have been involved in many negotiations with buyers big and small who provide their own version of their Confidentiality Agreement. The areas of concern for both parties are many and include such issues as reverse engineering, trade secrets, research, development, business activities, customer lists, products, services, technical knowledge, written or descriptive material, drawings, videotapes, operational data, blueprints, descriptions, or other papers or documents and any derivative works created from the confidential information disclosed.
These Confidentiality Agreements, also known as Nondisclosure Agreements, contain language describing what confidential and/or proprietary information will not fall under the terms of the Agreement, such as information already known to the receiving party or information already in the public domain. Disclosure by a valid court order is also allowed. And usually the parties agree that any violation of the restrictions on disclosure would cause the other party irreparable injury and thus allows such party to seek an injunction to prevent such release.
As our society and technology has advanced and methods of accessing such information have emerged, other issues in need of secrecy have developed such as HIPAA requirements and other Non-Public Personal Information, such as social security numbers, compensation, and drug testing results. As a practitioneer, I have had to deal with these issues and concerns as they developed and were presented for negotiation and also need to keep abreast of all new issues as our society and technology progress.
From time to time some of my readers have sent to me articles they have written and consider relevent to the stated purposes and goals of this blog. One such person, Gillian Holmes, has contacted me and pointed out a extremely important and relevent article in BACKGROUNDCHECK.ORG entitled “The Legislation of Privacy: New Laws That Will Change Your Life”. The article is current and provides the reader a list of the new Privacy Laws that we as practitioneers and also US Citizens need to be made aware. The layout of the article is well done. There is a brief synopsis of the new law, its name, and legislative sponsor. This description is followed by two brief subsections; one entitled “How It will Affect You” (this is self-explanatory), and the second is entitled “Timeline” and lays out when the new law was passed or when it is expected to become law. In addition to a DIGITAL COMMERCE section with pertinent legislation for the purposes of this Blog, such as:
· A bill of rights for consumers and a report entitled, “Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy”,
· The GPS Act providing guidelines to when and how geolocation information can be accessed and used, and
· Cyber intelligence Sharing and Protection Act (“CISPA”), and
· The newly updated HIPAA entitled “Health Information Technology for Economic and Clinical Health” (“HITECH”)
This article also includes information on:
· Online predators with “The Protecting Children from Internet Pornographers Act of 2011”, and
· Amendments to COPPA “Children Online Privacy Protection Act”, and
· “Social Media Privacy Act” which addresses privacy boundaries crossed when potential employers require applicants to turn over passwords to social media accounts.
The article seems to be thorough and one that I highly recommend to be on your must read list.