Mutual Non-Disclosure Agreement (International / Cross-Border)
Parties
This agreement is dated the date on which it is signed by the last of the parties.
This agreement is made between [Party 1] (the "Party 1") and [Party 2] (the "Party 2").
Key Terms
"Purpose" means [Purpose].
"Confidentiality Period" means three years from each disclosure.
"Return Period" means 30 days after receipt of a written request.
Confidential Information
"Confidential Information" means any information disclosed or made available by or for a party (the "Disclosing Party") to the other party (the "Receiving Party") in connection with the Purpose, in any form, including business, financial, technical, commercial, operational, customer, supplier, product, research, security, and trade-secret information, analyses and materials derived from it, and the existence and terms of the parties' discussions. Information is Confidential Information if it is marked or identified as confidential or, given its nature and the circumstances of disclosure, a reasonable person would understand it to be confidential.
Confidential Information does not include information that the Receiving Party can demonstrate by contemporaneous written records: was lawfully known to it without a duty of confidence before disclosure; becomes public through no breach of this agreement; is lawfully received from a third party without a duty of confidence; or is independently developed without use of or reference to the Confidential Information.
Use and Protection
The Receiving Party must use the Confidential Information only for the Purpose and must protect it using at least reasonable care and no less than the care it uses for its own information of similar sensitivity.
The Receiving Party may disclose Confidential Information only to its affiliates and its and their directors, officers, employees, professional advisers, contractors, financing sources, and prospective investors (together, "Representatives") who need to know it for the Purpose and are bound by confidentiality obligations no less protective than those in this agreement. The Receiving Party remains responsible for its Representatives' compliance with this agreement.
Required Disclosure
If the Receiving Party or any Representative is required by applicable law, regulation, stock-exchange rule, court order or governmental authority to disclose Confidential Information, it may disclose only the portion legally required. To the extent legally permitted and practicable, it must give the Disclosing Party prompt written notice and reasonable cooperation, at the Disclosing Party's cost, to seek protective treatment. Nothing in this agreement prevents anyone from reporting a suspected breach of law to a regulator, law-enforcement agency or other competent authority, or from making any other disclosure that applicable law protects.
Return or Destruction
On the Disclosing Party's written request, the Receiving Party must, within the Return Period, return or securely destroy the Confidential Information in its possession or control, except that it may retain copies required by law or retained under bona fide record-retention, insurance, compliance, audit, dispute-management, or routine backup policies. Any retained Confidential Information remains subject to this agreement until it is deleted in the ordinary course or the Confidentiality Period ends, whichever is later.
Term and Survival
This agreement applies to Confidential Information disclosed in connection with the Purpose before or after its date. Either party may end this agreement by written notice to the other, after which it applies only to Confidential Information disclosed before the notice takes effect. The confidentiality and use restrictions in this agreement apply to each item of Confidential Information for the Confidentiality Period and, for any Confidential Information that qualifies as a trade secret under applicable law, for as long as it remains a trade secret, if longer and to the extent permitted by applicable law. Ending this agreement does not affect rights and remedies that have already accrued.
No Licence or Commitment
Except for the limited right to use Confidential Information for the Purpose, no intellectual-property right, licence, ownership interest or other right is granted by this agreement or by disclosure. Neither party is required to disclose information, continue discussions, enter into any transaction or proceed with the Purpose. This agreement does not create a partnership, joint venture or agency between the parties. It does not prevent either party from discussing similar opportunities with others or developing products, services or information independently, provided it does not use or disclose the other party's Confidential Information in breach of this agreement.
Confidential Information is provided as is. To the fullest extent permitted by applicable law, the Disclosing Party gives no representation or warranty, express or implied, as to its accuracy, completeness, or fitness for a particular purpose, and is not liable for decisions made in reliance on it, except in a definitive written agreement signed by the parties.
Publicity
Neither party may make a public announcement or use the other party's name, trademarks, or logos in connection with the Purpose without the other party's prior written consent, except where disclosure is required by law, regulation, or stock-exchange rule, subject to the Required Disclosure clause.
Residuals
Neither party may use the other party's Confidential Information on the ground that it is retained in the unaided memory of any person. All use of Confidential Information remains subject to this agreement.
Non-Solicitation
For 12 months from the date of this agreement, neither party may, without the other party's prior written consent, directly or indirectly solicit for employment or engagement any employee of the other party with whom it had dealings in connection with the Purpose. This does not restrict general recruitment advertising that is not targeted at the other party's employees, or hiring a person who responds to it or who approaches a party on their own initiative.
Inside Information
Each party acknowledges that the other party's Confidential Information may include inside information about that party or its securities, and that applicable securities and market-abuse laws restrict dealing in those securities, and disclosing that information, while in possession of it. Each party must comply with those laws and make its Representatives who receive that information aware of those restrictions.
Personal Data
Each party must comply with applicable data-protection law when handling personal data under this agreement. Neither party may disclose personal data unless it is reasonably necessary for the Purpose and it has a lawful basis to do so. Where required, the parties must enter into appropriate data-processing and cross-border transfer arrangements before sharing personal data.
Compliance
Neither party may provide, access, export, re-export, transfer or use Confidential Information in breach of applicable export-control, sanctions or trade laws, and neither party is required to disclose information where doing so would breach those laws. Each party is responsible for obtaining any authorisations required for its own activities.
Remedies
Each party acknowledges that unauthorised use or disclosure of Confidential Information may cause harm for which damages alone may be inadequate. Subject to applicable law, the affected party may seek urgent interim, injunctive, or other equitable relief from a court of competent jurisdiction, without limiting any other remedy.
Governing Law and Disputes
This agreement and any non-contractual obligations arising out of or in connection with it are governed by the law of England and Wales.
Any dispute arising out of or in connection with this agreement, including any question about its existence, validity or termination, must be referred to and finally resolved by arbitration under the LCIA Rules, which are incorporated by reference into this clause. The tribunal is to consist of one arbitrator. The seat of arbitration is London, England, and the language of the arbitration is English. This does not prevent either party from seeking urgent interim or injunctive relief from any court of competent jurisdiction.
Notices
A notice under this agreement must be in writing and delivered by hand, reputable international courier, or email to Party 1 at [Party 1 notice address] and to Party 2 at [Party 2 notice address], or to any replacement address notified in writing. A notice is deemed received when delivered by hand, on recorded delivery by courier, or, for email, when no delivery-failure message is received, provided that an email sent outside normal business hours at the recipient's location is deemed received at the start of the next business day there.
General
This agreement is the entire agreement between the parties on its subject matter and supersedes prior confidentiality understandings relating to the Purpose, but nothing in it limits liability for fraud. Any amendment or waiver must be in writing and signed by both parties. Neither party may assign or transfer this agreement without the other party's prior written consent, except to a successor to substantially all of its relevant business or assets that agrees in writing to be bound by this agreement. If any provision is unenforceable, it must be modified to the minimum extent necessary and the remaining provisions remain effective. A person who is not a party to this agreement has no right to enforce it, except that a permitted successor may do so. This agreement may be signed in counterparts and by electronic signature, each of which is an original and all of which together form one agreement.
Successors and Permitted Assigns
This agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
No Implied Waiver
A waiver must be signed by the waiving party’s authorised representative and cannot be implied from conduct.
Counterparts and Electronic Execution
This agreement may be executed in counterparts, including electronic copies, each of which is deemed an original and which together form the same agreement.
Interpretation
Where a party is an individual, "it" and "its" include him or her and his or her, and a reference to a party's directors or officers applies only to a party that is a body corporate or other entity.
Headings and Including
Headings are for convenience only, and “including” and similar terms are to be construed without limitation.