England & Wales 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.
A party that has to use Confidential Information in proceedings in the courts of England and Wales must, so far as the court rules allow, ask the court to restrict access to the related documents and to hear that part of the case in private, and must tell the other party in good time so that it can make its own application.
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 enters administration, liquidation, receivership or a similar procedure, it 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, so far as the insolvency legislation applying to the procedure 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.
Personal Data
If Confidential Information includes personal data, the Recipient must process it only for the Purpose and in accordance with the UK GDPR and the Data Protection Act 2018, 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 the UK GDPR requires.
The Recipient must not transfer personal data that forms part of the Confidential Information to a country outside the United Kingdom unless the UK GDPR permits the transfer, for example under adequacy regulations, the International Data Transfer Agreement or the Addendum to the EU standard contractual clauses, and must tell the Discloser beforehand which countries are concerned.
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
Breach of this agreement may cause the Discloser loss for which damages are not an adequate remedy. In addition to damages, the Discloser may ask the court for an injunction, an order for delivery up or destruction of Confidential Information, an account of profits or any other equitable relief against an actual or threatened breach.
The rights and remedies in this agreement are in addition to the Discloser's rights under the law of breach of confidence. Where Confidential Information is also a trade secret within the meaning of the Trade Secrets (Enforcement, etc.) Regulations 2018, the Discloser may rely on those Regulations as well as on this agreement, and nothing in this agreement limits a remedy available under them or under the law of confidence.
Required Disclosure
Nothing in this agreement prevents the Recipient or any of its Representatives from making a disclosure that is protected under Part IVA of the Employment Rights Act 1996, from reporting a suspected criminal offence to the police or another law enforcement authority, or from giving information to a regulator that has power to require it. No notice to the Discloser is needed for any such disclosure.
Remedies
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 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 dispute or claim, including a non-contractual dispute or claim, arising out of or in connection with it or its subject matter are governed by the law of England and Wales.
The courts of England and Wales have exclusive jurisdiction to settle any dispute or claim, including a non-contractual dispute or claim, arising out of or in connection with this agreement, except that either party may seek interim or injunctive relief in any court of competent jurisdiction.