The Guide is a work in progress; I provide it to students in the contract-drafting course I teach as an adjunct professor at the University of Houston Law Center.
For many of the contract clauses in the Guide, the commentary includes links to comparable provisions found in agreements in the SEC’s online EDGAR system.
An example of an annotated contract clause from the Guide is set out further down on this page.
Download the draft
The draft posted here is the working draft of February 15, 2012. You can:
• Download a free PDF, and/or
• Get the complete editable “Word” (RTF) document
(via e-junkie.com — help support the project)
Example of Common Draft annotated contract clause
Here’s an example of an annotated clause from the Common Draft Contract Review Guide:
402.05 Definition: Confidential Information
Confidential Information refers to non-public information that: (a) is maintained in confidence by or on behalf of a Disclosing Party; and (b) meets any other requirement stated in this Agreement for the information to qualify as Confidential Information.
Commentary
“Maintained in confidence”: In most jurisdictions, the law will not protect information that in fact is not the subject of reasonable efforts to maintain it in confidence.
In many if not most cases, courts will look to the definition of “trade secret,” under either the relevant statute — which typically will be a variation of the Uniform Trade Secrets Act — or the Restatement of Torts.
Here’s a typical statutory example, from the California Uniform Trade Secrets Act, Cal. Civ. Code 3426.1(d): “‘Trade secret’ means information, including a formula, pattern, compilation, program, device, method, technique, or process, that … Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy” (emphasis added).
To like effect is the commentary to section 757 of the Restatement of Torts, which sets out a number of factors affecting whether particular information is a trade secret, including “3. the extent of efforts taken … to guard the secrecy of the information …” (emphasis added).
Oddball example: AT&T NDA for Poles, Ducts, etc. § 1 refers to information “which AT&T intends to keep secret” (emphasis added). It’s not at all clear that this would be enough to work in court.
• Download a free PDF, and/or
• Get the editable “Word” (RTF) document
(via e-junkie.com — help support the project)
IACCM Intellectual property law basics teleseminar slides
Here are the slides (PDF) for a teleseminar I did on February 9, 2012, for the International Association for Contract and Commercial Management, on “Intellectual property law basics for contracting professionals.”
The Common Draft Contract Review Guide is available above.
Contract review: A final checklist
