ADGM One-Way Non-Disclosure Agreement
Parties
This agreement is dated the date on which it is signed by the last of the parties.
This agreement is made between [Discloser] (the "Discloser") and [Recipient] (the "Recipient").
Key Terms
"Purpose" means [Purpose (what the Recipient may use the information for)].
"Disclosure Period" means 12 months starting on the date of this agreement.
"Confidentiality Period" means 3 years after the end of the Disclosure Period.
"Return Period" means 14 days after the Discloser's written request.
Definitions
"Confidential Information" means all information, in any form, that the Discloser or its Affiliates, or anyone on their behalf, disclose or make available to the Recipient or its Representatives in connection with the Purpose, whether before or after the date of this agreement, and that is marked or identified as confidential or that a reasonable person would understand to be confidential from its nature or the circumstances of disclosure. It includes information about the Discloser's business, finances, customers, suppliers, products, technology, know-how and plans; the fact and status of discussions about the Purpose; and all notes, analyses and other material containing or derived from that information.
"Affiliate" means, in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party, where "control" means owning more than half of the voting rights in an entity or having the power to direct its management and policies.
"Representatives" means the directors, officers, employees, professional advisers, auditors, insurers and contractors of the Recipient and its Affiliates.
Exclusions
Confidential Information does not include information that the Recipient can show by written evidence: (a) is or becomes publicly available other than through a breach of this agreement by the Recipient or its Representatives; (b) was lawfully in its possession free of any duty of confidence before the Discloser disclosed it; (c) it lawfully receives from a third party who is not, to its knowledge, under a duty of confidence about it; or (d) it independently develops without using or referring to Confidential Information. Information is not within an exclusion merely because individual parts of it are, or because more general information is.
Confidentiality
The Recipient must: (a) use Confidential Information only for the Purpose; (b) keep it confidential and not disclose it to anyone except as this agreement permits; (c) protect it with at least the care it uses for its own confidential information of similar importance, and no less than reasonable care; and (d) not copy or record it except as reasonably needed for the Purpose.
The Recipient may disclose Confidential Information to those of its Representatives who need to know it for the Purpose, if before disclosure it tells them that the information is confidential and they are bound by contractual or professional duties of confidentiality no less protective than this agreement. The Recipient is responsible for any act or omission of a Representative that would breach this agreement if done by the Recipient.
The Recipient must notify the Discloser promptly after becoming aware of any unauthorised access to, or use or disclosure of, Confidential Information, and must take reasonable steps, in cooperation with the Discloser, to stop and remedy it.
Required Disclosure
The Recipient or its Representatives may disclose Confidential Information to the extent required by law, regulation, court order, the rules of a stock exchange on which its or its Affiliate's securities are listed, or a binding requirement of a governmental or regulatory authority. To the extent lawful, the Recipient must give the Discloser prompt written notice before disclosing, cooperate reasonably, at the Discloser's cost, with any effort to obtain confidential treatment or a protective order, and disclose only the part legally required.
Either party may give information, including Confidential Information, to the Financial Services Regulatory Authority of the ADGM, or to any other regulator with authority over it, and may comply with a request or order from that regulator. Where the regulator allows, the party must tell the other party beforehand and ask the regulator to treat the information as confidential.
Return or Destruction
Within the Return Period, the Recipient must return or securely destroy all Confidential Information in its or its Representatives' possession or control and, if the Discloser asks, confirm in writing that it has done so. The Recipient may keep copies that law, regulation or professional rules require it to keep, or that are held in automatic electronic back-ups and are not readily accessible, if it does not access them except as so required. Those copies remain subject to this agreement for as long as they are kept.
If the Recipient goes into liquidation, administration, receivership or any other insolvency process under the laws of the ADGM or elsewhere, it or the office-holder must hold the Confidential Information separately from the Recipient's other assets, must not sell it as an asset of the Recipient and, so far as the law applying to the process permits, must give effect to the Return or Destruction clause when the Discloser asks.
Ownership and No Warranty
All Confidential Information remains the property of the Discloser or its Affiliates. Apart from the right to use it for the Purpose under this agreement, the Recipient receives no licence or other right in any Confidential Information or in any intellectual property right of the Discloser or its Affiliates.
Confidential Information is provided "as is". The Discloser gives no warranty or representation as to its accuracy or completeness, and has no liability for the Recipient's use of it, except as agreed in a later written agreement between the parties or in the case of fraud.
This agreement does not oblige either party to disclose any particular information, to continue discussions or to enter into any further agreement or transaction, and either party may end discussions at any time.
Additional Protections
The Recipient must not decompile, disassemble, reverse engineer or analyse the composition of any software, prototype, sample or other material comprised in Confidential Information, or otherwise try to derive its source code, structure or underlying ideas, except to the extent applicable law permits this despite a contractual restriction.
During the Disclosure Period and 12 months after it ends, the Recipient must not, and must ensure that its Affiliates do not, directly or indirectly solicit for employment or engagement any employee of the Discloser with whom it had contact, or of whom it first became aware, in connection with the Purpose. This does not restrict general advertisements or recruitment campaigns not aimed at the Discloser's employees, or hiring anyone who responds to them.
Personal Data
If Confidential Information includes personal data, the Recipient must process it only for the Purpose and in accordance with the ADGM Data Protection Regulations 2021 and any other applicable data protection law, keep it secure, and notify the Discloser without undue delay after becoming aware of a personal data breach affecting it. If the Recipient will process personal data on the Discloser's behalf, the parties must first agree the processor terms that law requires.
The Recipient may transfer personal data that forms part of the Confidential Information outside the ADGM only if the ADGM Data Protection Regulations 2021 permit the transfer, and must tell the Discloser beforehand which countries are concerned and what safeguard it relies on.
Term
This agreement applies to Confidential Information disclosed before the date of this agreement or during the Disclosure Period. Either party may end the Disclosure Period early by written notice to the other. The Recipient's obligations under this agreement continue for the Confidentiality Period and, for Confidential Information that is a trade secret, for as long as it remains a trade secret under applicable law.
The Discloser's rights and remedies under this agreement are in addition to its rights under the law of confidence that applies in the ADGM, including the equitable duty of confidence. The Confidentiality Period limits the Recipient's contractual obligations, but it does not reduce any duty of confidence that the law imposes independently of this agreement.
Remedies
If the Recipient breaches or threatens to breach this agreement, the Discloser may apply to the ADGM Courts for an injunction, an order for delivery up or destruction of Confidential Information, an account of profits, damages or other equitable relief. The Recipient acknowledges that damages alone may not be an adequate remedy, but each remedy is available only if the ADGM Courts consider it appropriate on the facts.
The Recipient must indemnify the Discloser against all losses, damages, costs and expenses, including reasonable legal fees, that the Discloser incurs as a result of any breach of this agreement by the Recipient or its Representatives.
Notices
A notice under this agreement must be in writing and delivered by hand, by courier or by email to the address or email address the other party last notified for notices or, failing that, to its registered office or principal place of business or, for an individual, his or her usual or last known residential address. A notice is received on delivery or, for email, when sent unless the sender receives a delivery-failure message. A notice received outside business hours at the place of receipt is received when business hours next begin.
General
Neither party may assign or transfer its rights or obligations under this agreement without the other party's prior written consent, except that either party may assign this agreement, on written notice, to an Affiliate or to a successor to all or substantially all of the business to which this agreement relates, if the assignee agrees in writing to be bound by it.
This agreement is the entire agreement between the parties about its subject matter and replaces any earlier agreement or understanding about it, without affecting liability for an earlier breach. Each party confirms that it has not relied on any statement or representation not set out in this agreement. Nothing in this clause limits or excludes liability for fraud.
A variation of this agreement is effective only if it is in writing and signed by or on behalf of each party.
A failure or delay in exercising a right or remedy is not a waiver of it. A waiver is effective only if in writing and applies only to the circumstance for which it is given.
If any provision of this agreement is invalid, illegal or unenforceable, it applies with the minimum modification needed to make it valid, legal and enforceable and, if no modification can achieve that, it is treated as deleted. This does not affect the rest of this agreement.
Nothing in this agreement creates a partnership, joint venture or agency relationship between the parties.
A person who is not a party to this agreement has no right under the Contracts (Rights of Third Parties) Act 1999, as it applies in the Abu Dhabi Global Market, to enforce any of its terms.
This agreement may be signed in any number of counterparts, which together form one agreement. A party may sign electronically, and delivery of a signed copy by email or other electronic means is effective.
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.
Governing Law and Jurisdiction
This agreement and any non-contractual obligations arising out of or in connection with it are governed by the laws of the Abu Dhabi Global Market.
The ADGM Courts have exclusive jurisdiction to decide any dispute or claim arising out of or in connection with this agreement, including a question about its existence, validity or termination and any non-contractual dispute or claim. Either party may ask any other court of competent jurisdiction for interim or injunctive relief.
A party that needs to use Confidential Information in proceedings before the ADGM Courts must, so far as the court's rules allow, ask for the hearing, or the part of it concerning that information, to be held in private and for access to the related documents to be restricted, and must tell the other party in good time so that it can make its own application.
The Recipient agrees that an order or judgment of the ADGM Courts under this agreement may be enforced against it wherever it has assets, and that it will not resist recognition or enforcement in the onshore courts of the Emirate of Abu Dhabi, or elsewhere, merely because the order or judgment was made by a court in a financial free zone.