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I've been asked to sign a non-disclosure agreement (NDA). I generally like to read things before I sign them, and the first real condition was this:

The restrictions herein provided shall not apply with respect to “Confidential Information” which is not known by the Receiving Party at the time of receipt.

This reads incorrectly to me. I believe what they really mean to say is:

The restrictions herein provided shall apply with respect to “Confidential Information” which is not known by the Receiving Party at the time of receipt.

i.e. the not between shall and apply should be deleted.

Surely they want to protect the "Confidential Information" that is not known by me when I receive it?

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    It is amazing how organizations blindly propagate forms that either were wrong to start or accumulate errors over time.
    – George White
    Dec 29, 2020 at 23:35
  • I have more often seen NDAs which say that they do not apply to information which is already known to the recipient, because US trade secret laws do not apply to information that the recipient already has. But it is much the same mistake.There is, of course, no way to be sure what the company actually meant. Except by asking them.
    – David Siegel
    Dec 30, 2020 at 2:20
  • The parties, a judge, and I can all agree that "shall not apply" is very likely wrong, but there it is in the contract. I wonder if there is a general principle what the parties should do and what a judge should do. There was a rumour about a company I worked for having signed a contract that should have said "If A takes a certain action that would be highly damaging for B and not beneficial for A, then A shall pay a huge penalty" and instead said "If A DOES NOT take this damaging action. ". So according to the contract as written A had the choice of causing damage to B or paying a fine.
    – gnasher729
    Dec 30, 2020 at 22:40
  • @gnasher729 The parties can always sign a revised contract, if the agree to do so. Ther is also a concept in contract law called "mutual mistake". If there is a dispute that goes to court, a judge can find in effect that no sensible parties could have wanted the contract as it literally reads, and the judge can treat it as if it said what it was clearly intended to say. Problems come when it is obviously wrong, but what was intended is not so clear.
    – David Siegel
    Dec 31, 2020 at 1:23

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Surely they want to protect the "Confidential Information" that is not known by me when I receive it?

It seems that you are right, since disclosing confidential information without first obtaining from the recipient some sort of assurance is risky and perhaps dumb. George White's remark is right, and this might be another instance of drafter's/company's sloppiness. On the other hand, it is possible that confidential information which you do not currently know might be governed by a separate contract, in which case either or both contracts should reasonably outline of what confidential information they encompass.

Knowledge of the background and details of the contract might enable a reasonable person to identify the parties' intent. But as David Siegel suggests, the most straight-forward approach is to ask the company. In this context, asking means that the company ought to amend the wording of the contract it wants you to sign.

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    Thank-you! I had asked the company several weeks ago, with zero response. I received a response today: they amended the NDA by dropping the not that I indicated in the question.
    – Acton Bell
    Dec 30, 2020 at 16:38

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