One-Way 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 [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.
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 an insolvency, reorganisation or similar proceeding is opened against the Recipient in any country, the Recipient and any office-holder must keep the Confidential Information separate from the Recipient's other assets, must not sell it with them, and must return or destroy it as this agreement requires, to the extent that the law applying to the proceeding allows.
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.
The Recipient must not export, re-export or transfer any Confidential Information, directly or indirectly, in breach of applicable export control or sanctions laws.
Personal Data
If Confidential Information includes personal data, the Recipient must process it only for the Purpose and in accordance with applicable data protection law, keep it secure, transfer it to another country only as that law permits, 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 processing terms that law requires.
Before the Recipient transfers personal data that forms part of the Confidential Information to another country, it must put in place any transfer mechanism that applicable data protection law requires, such as approved standard contractual clauses, and must give the Discloser a copy on request.
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.
Remedies
The parties accept that a breach of this agreement could cause the Discloser harm that damages would not fully repair. The Discloser may therefore ask any arbitral tribunal or emergency arbitrator under the Governing Law and Disputes clause, or any court of competent jurisdiction, for an injunction, specific performance or other interim or final relief against an actual or threatened breach, and doing so does not waive any right to arbitrate.
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 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 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 by one arbitrator. The seat of arbitration is London, England and the language of the arbitration is English. Either party may seek interim or injunctive relief from any court of competent jurisdiction.
The existence and content of any arbitration under this agreement, and all documents produced and awards made in it, are Confidential Information of both parties and may be disclosed only as needed to enforce or challenge an award, to comply with law or a regulator, or to professional advisers bound to confidence.
The parties intend any award to be final and binding and to be enforceable in any country that is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958). Judgment on an award may be entered or enforced in any court that has jurisdiction over the party against which it is made or its assets.
Nothing in this agreement prevents a disclosure that mandatory law protects, including a report to a law enforcement or regulatory authority or a disclosure by a whistleblower, and no notice to the Discloser is needed for such a disclosure. If mandatory law of the place where the Recipient operates conflicts with this agreement, that law prevails to the extent of the conflict.