NDA & Confidentiality Agreement

Following on from several requests on my youtube channel. Here is a copy of an NDA we have used several times in the past. This is provided for educational and illustrative purposes only. We make no warranties express or implied as to its suitability. If you require an NDA for a transaction you should take independent legal advice and ask your solicitor to draft one for your particular transaction and circumstances.

CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

THIS AGREEMENT is made on                      day of                                    2020

BETWEEN

(1)          COMPANY ONE  LIMITED (company number xxxxxx ) whose registered office is at (“ONE”); and

(2)          COMPANY TWO a company incorporated in XXXXX (company number XXXXXX ) whose registered office is XXXXXXXXXXXXXX (“ TWO”)

each a “Party” and together the “Parties”.

WHEREAS:

A.           The Parties have had and desire to continue confidential discussions in relation to a potential transaction in relation to XXXXXXXXXXXXXXXXXXXXXX   (the “Purpose”).

B.            In relation to the Purpose, the Parties may disclose to each other information of a confidential nature relating to their respective businesses.

C.            This Agreement sets out the terms on which the Parties will disclose certain information to each other in connection with the Purpose.

D.           The Parties each agree by signing this confidentiality and non-disclosure agreement (“Agreement”) that they shall be subject to the provisions contained herein.

IT IS AGREED:

1.                       DEFINITIONS AND INTERPRETATION

1.1                   The following definitions and rules of interpretation in this paragraph shall apply in this Agreement:

“Confidential Information” means all and any information in whatever form (including in oral, written, electronic and visual form) disclosed by or on behalf of a Party or its Representatives before or after the date of this Agreement to the other Party or that Party’s Representatives, including but not limited to:

(a)                the fact that discussions and negotiations are taking place concerning the Purpose and            the status of such discussions and negotiations;

(b)               the existence and terms of this Agreement;

(c)                any information relating to the:

(i)            property, assets, business, affairs, trading position, finances, sales, margins, customers, clients, suppliers, plans, intentions, trading practices or market opportunities of the Disclosing Party, or of the Disclosing Party's Group; and/or

(ii)          the operations, processes, product information, intellectual property, know-how, designs, trade secrets or software of the Disclosing Party or of the Disclosing Party’s Group; and

(d)          any information, compilations, studies, analysis or other documents derived from Confidential Information and any other information that is identified as being of a confidential or proprietary nature,

and the term "Confidential Information" shall not apply to information which:

(e)           the Receiving Party can demonstrate, to the reasonable satisfaction of the other Party, was already in its lawful possession before its disclosure by the Disclosing Party or came lawfully into its possession after its disclosure and in either case was held by the Receiving Party free from any obligation of confidentiality;

(f)            is in the public domain at the time of disclosure or subsequently comes into the public domain through no fault nor as a consequence of a breach of the Receiving Party; or

(g)          is independently developed by an employee of the Receiving Party to whom no disclosure of any Confidential information has been made.

"Disclosing Party” means a Party to this agreement who directly or indirectly discloses or makes available Confidential Information;

“Group" means in relation to a company, that company, and each and any subsidiary, holding or parent company from time to time;

“Receiving Party” means a Party to this agreement who directly or indirectly receives Confidential Information;

“Representatives” means representatives of a Party, being the directors, employees, officers and professional advisers of that Party or of that Party’s Group who are directly concerned with the Purpose; and

“Term” means a period of five years from the date stated at the head of this Agreement.

1.1.                In this Agreement (unless the context requires otherwise):

1.1.2              the words "undertaking", "subsidiary undertaking" and "parent undertaking" have the meanings set out in sections 1161 and 1162 of the Companies Act 2006;

1.1.3              "including", "includes" or "in particular" means including, includes or in particular without limitation;

1.1.4              "written" or "writing" includes faxes and email;

1.1.5              references to persons includes bodies corporate, unincorporated associations and partnerships (whether or not any of them have a separate legal personality); and

1.1.6              the singular includes the plural and vice versa.

1.2                   Clause and paragraph headings shall not affect the interpretation of this Agreement.

2.                       OBLIGATIONS OF CONFIDENTIALITY

2.1                   Both Parties hereby agree:

2.1.1              to use any Confidential Information solely for the Purpose and not to use or exploit the Confidential Information for any other purpose whatsoever. In particular, neither Party will use or permit the use of the other Party's Confidential Information to obtain a commercial, trading, investment, financial or other advantage over the other Party or otherwise use it to the other Party’s detriment;

2.1.2              to treat all Confidential Information as being strictly private and confidential and not to disclose or permit the disclosure of the Confidential Information to any other person without the other Party's prior written consent;

2.1.3              to take all reasonable and necessary steps to protect Confidential Information from being disclosed to any third party other than as required by law or any regulatory authority or by any order of any court of competent jurisdiction, to the minimum extent required to satisfy such requirement. Before such a disclosure, the Disclosing Party shall give the other Party written notice of such disclosure detailing the full circumstances of the disclosure, and, where possible take into account the reasonable requests of the other Party in relation to the content and timing of this disclosure;

2.1.4              to notify the other Party of the recipient of, and the form and extent of, any disclosure made in accordance with paragraph 2.1.3 immediately after it is made;

2.1.5              to keep the Confidential Information safely and securely and to apply the same security measures and degree of care to the Confidential Information as the Receiving Party applies to its own confidential information, providing adequate protection from theft, damage, loss and unauthorised disclosure, copying or use (including access by electronic means);

2.1.6              to use reasonable endeavours to ensure the completeness of all Confidential Information, however, the Disclosing Party shall have no liability to the Receiving Party resulting from the use of the Confidential Information; and

2.1.7              not to copy or permit to be copied, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the Purpose (and any such copies, reductions to writing and records shall be the property of the Disclosing Party).

3.                       RETURN OF INFORMATION

3.1                   At the written request of the Disclosing Party, the Receiving Party shall promptly (and in any event within 7 calendar days of the date of such request):

3.1.1              destroy or return to the Disclosing Party, or use its reasonable endeavours to procure the return or the destruction, of all documents and materials containing Confidential Information, including any copies containing, reflecting, incorporating, or based on the Disclosing Party's Confidential Information;

3.1.2              delete or use its reasonable endeavours to procure the deletion of all the Confidential Information from any computer, word processor or other device in its or any of its Representatives' possession or control; and

3.1.3              certify in writing that it and, to the best of its knowledge, information and belief having made all reasonable enquiries of them, all of its Representatives have complied with the requirements of this paragraph 3.1.

3.2                   The Receiving Party or its Representatives may retain documents and materials containing, reflecting, incorporating, or based on the Disclosing Party's Confidential Information to the extent that it is required by law or any applicable governmental or regulatory authority and to the extent reasonable to permit the Receiving Party to keep evidence that it has performed its obligations under this Agreement.

3.3                   For the avoidance of doubt, the obligations of confidentiality in this Agreement will continue to apply to such retained Confidential Information.

4.                       COPYRIGHT AND INTELLECTUAL PROPERTY

4.1                   The delivery of documents and materials containing Confidential Information shall not amount to a licence in favour of the Receiving Party.

4.2                   Any and all patent, copyright or intellectual property rights in, for or relating to the Confidential Information shall remain with the Disclosing Party.

5.                       RESERVATION OF RIGHTS AND ACKNOWLEDGEMENT

5.1                   The Parties acknowledge that all Confidential Information shall remain the property of the Disclosing Party and no rights or licence in that Confidential Information shall be conferred on the other Party except as set out in this Agreement. Each Party reserves all rights in its Confidential Information.

5.2                   The disclosure of Confidential Information by the Disclosing Party shall not form any offer by, or representation or warranty on the part of the Disclosing Party to enter into any further agreement in relation to the Purpose, or the development or supply of any product or service to which the Confidential Information relates, or to continue discussions in relation to the Purpose.

5.3                   Each Party confirms to the other that it is acting as principal on its own account and not as agent or broker for any other person.

6.                       TERM AND TERMINATION

6.1                   The Term of the Agreement is defined in paragraph 1.

6.2                   If either Party decides not to continue to be involved in the Purpose with the other Party, it shall notify the other in writing immediately. In the event of such termination, the obligations of both Parties under this Agreement shall still continue for the duration of the Term.

6.3                   Termination shall not:

6.3.1              affect any accrued rights or remedies to which either Party is entitled under this Agreement or release either Party from liability for breach before such termination; or

6.3.2              release a Party from its continuing obligations under this Agreement.

6.4                   Each Party is responsible for any costs incurred by it, by any other member of its Group or by any of their Representatives in considering or pursuing the Purpose and in complying with the terms of this Agreement.

7.                       WARRANTY AND INDEMNITY

7.1                   The Parties acknowledge that neither Party:

7.1.1              gives or makes any undertaking, indemnity, representation or warranty, whether express or implied, with respect to the accuracy or completeness of any Confidential Information; and

7.1.2              shall be liable for any indirect, incidental, consequential losses, or punitive damages of any nature or kind, resulting from or arising in connection with this Agreement.

7.2                   Nothing in this paragraph 7 operates to exclude or limit liability for fraud.

8.                       REMEDIES

8.1                   The Parties acknowledge that in the event of a breach of this Agreement, the extent of which would be difficult to ascertain, monetary damages may be an inadequate remedy for such breach.

8.2                   The Parties agree that in the event of a breach of this Agreement by either Party, the other Party shall be entitled to specific performance and injunctive or other equitable relief as the court may deem appropriate, and such remedies shall not be the exclusive remedy for a breach of this Agreement, but shall be in addition to all other remedies available at law or equity or as otherwise provided for in this Agreement.

9.                       ENTIRE AGREEMENT

9.1                   This Agreement shall constitute the entire agreement between the Parties and shall supersede any and all previous agreements, understandings, statements and communications between the Parties.

9.2                   No variation to this Agreement shall be effective unless in writing and agreed by both Parties.

9.3                   No Party may assign or sub-contract any or all of its rights and/or obligations under this Agreement.

10.                   NO WAIVER

10.1                Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.

10.2                No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.

11.                   COUNTERPARTS

11.1                This Agreement may be executed in any number of counterparts each of which shall constitute an original, but all the counterparts together shall constitute one and the same instrument.

12.                   GOVERNING LAW

12.1                This Agreement is subject to the laws of England and Wales and the Parties submit to the exclusive jurisdiction of the English courts.

This Agreement has been entered into on the date stated at the head of this Agreement.

Signed for and on behalf of COMPANY ONE LIMITED:

signature of

Director/Company Secretary/Authorised Signatory

signature of

Director/Company Secretary/Authorised Signatory/ Witness

full name of above (print)

full name of above (print)

date of signing

date of signing

place of signing

address of witness

Signed for and on behalf of  COMPANY TWO LIMITED:

signature of

Director/Company Secretary/Authorised Signatory

signature of

Director/Company Secretary/Authorised Signatory/ Witness

full name of above (print)

full name of above (print)

date of signing

date of signing

place of signing

address of witness