Does the definition of 'Confidential Information' for an Aplus franchise include Trade Secrets?
Aplus Franchise · 2024 FDDAnswer from 2024 FDD Document
- "Confidential Information" means technical and non-technical information used in or related to the APLUS and/or SUNOCO Franchised Business and not commonly known by or available to the public, including, without limitation, Trade Secrets, methods and products, customer services techniques and other techniques and methodologies not generally known to the industry or public, and any other information identified or labeled as confidential when delivered by Franchisor.
Confidential Information shall not include, however, any information that: (a) is now or subsequently becomes generally available to the public through no fault of Franchisee; (b) Franchisee can demonstrate was rightfully in its possession, without obligation of nondisclosure, prior to disclosure pursuant to this Agreement; (c) is independently developed without the use of any Confidential Information; or (d) is rightfully obtained from a third party who has the right, without obligation of nondisclosure, to transfer or disclose such information.
Source: Item 23 — RECEIPT (FDD pages 68–302)
What This Means (2024 FDD)
According to Aplus's 2024 Franchise Disclosure Document, the definition of "Confidential Information" explicitly includes Trade Secrets. The FDD states that Confidential Information encompasses technical and non-technical data related to the APLUS and/or SUNOCO Franchised Business that is not publicly known. This includes, without limitation, Trade Secrets, customer service techniques, methodologies not generally known in the industry, and any information identified or labeled as confidential by Aplus.
This means that as an Aplus franchisee, you are obligated to protect not only explicitly labeled confidential information but also Trade Secrets, which are vital for the business's competitive edge. This obligation extends to maintaining the secrecy of methods, techniques, and other proprietary information that gives Aplus its unique market position. The agreement also specifies certain exceptions where information is not considered confidential, such as information that becomes publicly available without fault on the franchisee's part, was already rightfully in the franchisee's possession, is independently developed, or is rightfully obtained from a third party with the right to disclose it.
The FDD also clarifies what constitutes a "Trade Secret," defining it as information in any form related to the Franchised Business that is not commonly known or available to the public. This information must derive economic value from its secrecy and be subject to reasonable efforts to maintain that secrecy. This definition is important because it sets the standard for what Aplus considers proprietary and what franchisees must protect to maintain the integrity of the Aplus system.
Furthermore, the document emphasizes the franchisee's acknowledgment that Aplus will disclose Trade Secrets and other Confidential Information during the training program, through the Manual, and as a result of guidance furnished during the term of the agreement. The franchisee's rights to this information are limited to the development and operation of the Franchised Business, and any unauthorized use or duplication would constitute an unfair method of competition. This underscores the importance of maintaining confidentiality and adhering to the guidelines set forth by Aplus to protect its Trade Secrets and Confidential Information.