What is excluded from the definition of 'Confidential Information' in the Aplus Development Agreement?
Aplus Franchise · 2024 FDDAnswer from 2024 FDD Document
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 22 — CONTRACTS (FDD page 68)
What This Means (2024 FDD)
According to Aplus's 2024 Franchise Disclosure Document, the Development Agreement specifies certain exceptions to what is considered 'Confidential Information.' This means that while franchisees are generally obligated to protect sensitive business information, some types of information are explicitly excluded from this obligation.
Specifically, information is not considered confidential if it: (a) is already publicly available or becomes publicly available through no fault of the franchisee, (b) the franchisee can prove they rightfully possessed it before the agreement without any obligation to keep it secret, (c) is independently developed by the franchisee without using any confidential information from Aplus, or (d) is rightfully obtained from a third party who had the right to disclose it without any obligation of confidentiality.
For a prospective Aplus franchisee, this is important because it clarifies the scope of their confidentiality obligations. They are not required to keep information secret if it falls under one of these exceptions. This is a fairly standard clause in franchise agreements, as it protects franchisees from being penalized for using or disclosing information that is already in the public domain or that they rightfully obtained from other sources.