Does the Checkers agreement specify any exceptions to the confidentiality obligations?
Checkers Franchise · 2025 FDDAnswer from 2025 FDD Document
Furthermore, any and all information, knowledge,
know-how, techniques and information which the entities mentioned above or their officers designate as confidential is considered (and hereby acknowledged by me as) Confidential Information for the purposes of this Agreement, except information which I can demonstrate came to my attention before disclosure or which had become or becomes a part of the public domain through publication or communication by others (unless the publication or communication violates a similar confidentiality agreement), but in no event through any act of mine.
Source: Item 22 — CONTRACTS (FDD pages 91–92)
What This Means (2025 FDD)
According to Checkers' 2025 Franchise Disclosure Document, there are exceptions to the confidentiality obligations. An individual is not bound by confidentiality regarding information that they can demonstrate was already known to them before disclosure by Checkers, or if the information has become part of the public domain through publication or communication by others, provided that the individual did not violate a similar confidentiality agreement to make it public.
This means a Checkers franchisee is not required to keep information confidential if they can prove they already knew it prior to receiving it from Checkers. Also, if the information becomes publicly available through legitimate means (not due to the franchisee's breach of contract), the franchisee is no longer bound to keep it confidential. This is a fairly standard exception to confidentiality agreements, as it would be unreasonable to prevent someone from using information they already possessed or that is generally known.
However, the franchisee bears the burden of proof to demonstrate that the information falls under these exceptions. They must be able to show they knew the information beforehand or that it became public knowledge through proper channels. The confidentiality obligations remain in place if the information was released to the public due to a breach of a confidentiality agreement.