Is information already publicly available considered 'Confidential Information' under the Itan franchise agreement?
Itan Franchise · 2025 FDDAnswer from 2025 FDD Document
Confidential Information does not include information that: (a) is now, or subsequently becomes, generally available to the public (except as a result of a breach of confidentiality obligations by you, Franchisee or Franchisee's owners, employees or other constituents); (b) you can demonstrate was rightfully in your possession, without obligation of nondisclosure, before we (or any person associated with us) or Franchisee (or any person associated with Franchisee) disclosed the information to you; (c) is independently developed by you without any use of, or reference to, any Confidential Information; or (d) is rightfully obtained from a third party who has the right to transfer or disclose the information to you without breaching a confidentiality covenant imposed on such third party.
Source: Item 23 — RECEIPT (FDD pages 44–190)
What This Means (2025 FDD)
According to Itan's 2025 Franchise Disclosure Document, information that is already generally available to the public is not considered confidential information, with a specific exception. This exception applies if the information became public due to a breach of confidentiality obligations by the franchisee, their owners, employees, or other related parties.
This means that an Itan franchisee is not obligated to keep information secret if it is already widely known. However, franchisees must be careful not to be the source of the information becoming public. If a franchisee or someone affiliated with them violates their confidentiality obligations and causes the information to become public, it will still be treated as confidential information, and the franchisee could face penalties for the breach.
This provision protects Itan's confidential business information while also recognizing that franchisees should not be held liable for information that is legitimately in the public domain through no fault of their own. Prospective franchisees should understand the scope of 'Confidential Information' as defined in the FDD and take steps to ensure they and their employees maintain its secrecy, as breaches can have legal and financial repercussions.