Under what circumstances is information NOT considered 'Confidential Information' for an Aplus franchise?
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 23 — RECEIPT (FDD pages 68–302)
What This Means (2024 FDD)
According to Aplus's 2024 Franchise Disclosure Document, certain information is excluded from the definition of 'Confidential Information.' This means that an Aplus franchisee would not be bound by confidentiality obligations regarding such information.
Specifically, information is not considered Confidential Information if it: (1) is or becomes generally available to the public through no fault of the franchisee, (2) the franchisee can prove they rightfully possessed it before the agreement without any obligation to keep it secret, (3) it is independently developed by the franchisee without using any of Aplus's Confidential Information, or (4) it is rightfully obtained from a third party who has the right to disclose it without any confidentiality obligation.
This is a fairly standard exception to confidentiality agreements in franchising. It protects the franchisee from being penalized for using or sharing information they already knew, that became public knowledge, or that they obtained legitimately from another source. However, the franchisee bears the burden of proof to demonstrate that one of these exceptions applies.