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A two-sentence NDA?

Here’s a two-sentence confidentiality provision that I recently added to the fine print of a purchase-order form proposed by a customer of one of my clients (a provider of highly specialized big-data analysis services):

Each party will maintain the other party’s nonpublic confidential information in confidence unless independently possessed in accordance with the (U.S.) Defend Trade Secrets Act. This applies both: (i) to information timely marked as confidential and (ii) to unmarked information that a reasonable person in the relevant business would recognize as likely to be confidential, in either case unless the recipient shows otherwise. 

This certainly doesn’t have all the bells and whistles of a conventional confidentiality agreement, a.k.a. nondisclosure agreement a.k.a. “NDA.” But paraphrasing what my late senior partner Tom Arnold said many years ago in similar circumstances: For everyday purposes it’s almost certainly good enough — and it’ll be agreed to quickly (as in fact it has been here).

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