Confidentialité – Modèle de contrat de confidentialité réciproque en anglais

By Franck Beaudoin, avocat (solicitor admitted in France), FB Juris

Published on idroit.co on 6 May 2018 – Modified on 4 July 2018

Template of confidentiality agreement (mutual)

Confidentiality Agreement

This agreement is entered into between the parties identified below.

AXXX [company name], a company incorporated under the laws of XXX [state], with a share capital amounting to XXX [share capital], registered with the registrar of companies of XXX [city of the registrar if applicable] under number XXX [registration number], with its registered office located XXX [registered office], represented by XXX [name of the signatory, legal representative or other representative duly entitled], duly authorized in his capacity as XXX [capacity / title].

BXXX [company name], a company incorporated under the laws of XXX [state], with a share capital amounting to XXX [share capital], registered with the registrar of companies of XXX [city of the registrar if applicable] under number XXX [registration number], with its registered office located XXX [registered office], represented by XXX [name of the signatory, legal representative or other representative duly entitled], duly authorized in his capacity as XXX [capacity / title].

AXXX [company name] and BXXX [company name] are referred to herein as the parties.

The parties agree as follows.

Purpose – The parties intend to XXX [describe the project] (hereafter the project). For this purpose, the parties will exchange non-public information, in accordance with the terms and conditions set forth in this confidentiality agreement.

Confidentiality undertaking – The parties agree that any information relating to the project shall be confidential, as well as any non-public information relating to a party and learnt by another party during the course of this project. The parties undertake to maintain the confidentiality of such information, which is hereafter referred to as the confidential information. The parties shall not disclose to a third party any confidential information relating either to the project or to another party, except as expressly authorized herein. The parties shall apply appropriate security measures to this aim. If a party is informed of security vulnerability, or if it is informed that a non-authorised third party might gain access to confidential information, it shall notify it as soon as possible in writing to the other party.

Representatives – Each party may disclose confidential information to its representatives, employees and advisers, and those of its affiliates, in each case provided that they need to know this information for the purpose contemplated herein. Each party shall instruct its representatives to comply with the terms and conditions defined in this agreement and shall procure their compliance. Each party shall implement appropriate procedures (such as information barriers) in order to limit and control the access to confidential information. Each party shall keep a list of the persons who gained access to confidential information.

Mandatory disclosure – If a party is required to disclose confidential information to competent authorities duly entitled pursuant to applicable mandatory laws or regulations, it shall be entitled to do so without liability hereunder, provided that it takes the steps needed to limit the disclosure and to obtain a confidential treatment, as far as possible. This party shall inform as soon as possible the other party of any disclosure so required, if legally permitted. The parties shall cooperate, to the extent reasonably possible, in order to safeguard the confidentiality of the information and to allow each party to comply with its own obligations in respect of the confidential information.

Use of the confidential information – The confidential information shall be used exclusively for the purpose contemplated herein. It shall not be used for any other purpose. In particular, the confidential information shall not be used with a competitive aim. The information shall be used in strict compliance with the applicable laws and regulations. Notably, any recipient of the confidential information shall strictly comply with the rules relating to data processing, as well as with those relating to insider dealing, market abuse, competition law. [OPTION IF APPLICABLE: The parties acknowledge that they are listed companies and that the confidential information may be price-sensitive]. The parties undertake to take any steps needed in order to prevent any unlawful use of the confidential information.

[IF APPLICABLE: Highly sensitive information – The parties acknowledge that they are competitors and that, under competition law, certain information relating to their activities cannot be disclosed to each other without specific procedures intended to prevent any market abuse. The parties agree that they shall disclose highly sensitive information exclusively to their respective advisers. The advisers shall not disclose to a party highly sensitive information received from the other party].

Intellectual property – The communication of the confidential information shall not confer intellectual property rights over it. The intellectual property rights relating to the confidential information shall remain unaffected.

Representations and guarantees – The confidential information will be provided as is, without any representation or guarantee as to its accuracy, reliability or completeness. The parties may make representations or provide guarantees at a later stage.

Records – If a party does not need anymore the confidential information relating to another party for the purpose contemplated herein, or upon the written notice of this other party, it shall at its election destroy or return the confidential information relating to this other party. However, the parties will be entitled to retain the confidential information needed to comply with their obligations, in compliance with the terms and conditions provided by this agreement.

Duration – This agreement will remain in force until the expiry of a two-year period after the date indicated for its signature. However, this clause and generally this agreement shall not prejudice legal or regulatory obligations of secrecy. Besides, the confidential information retained after the expiry of this undertaking shall remain submitted to the terms and conditions defined herein. Generally, the parties shall do their best efforts to safeguard the confidentiality of the non-public information relating to the project or to another party and to prevent any use of the information that may harm the rightful interests of the other party, at any time, including after the expiry of this agreement.

Indemnification – The party which fails to comply with its obligations under this agreement shall indemnify the other party of any damage resulting from this failure.

Law and jurisdiction – This agreement shall be governed by French law. In case of any litigation arising in relation with this agreement, the Parties hereby grant an exclusive jurisdiction to the civil courts of XXX [city] (France) to rule the case.

***

[OPTION 1: This agreement is entered into by electronic means, each party receiving an electronic copy bearing the signature of the other party // OPTION 2: Made in two original copies drafted in English, each party receiving an original copy.]

For AXXX [company name]

Name of the representative duly entitled: _____________________

Position: ________________________________________________

We hereby undertake to comply with the terms and conditions set forth in this confidentiality agreement.

Date and place of signature:

Signature:

For BXXX [company name]

Name of the representative duly entitled: _____________________

Position: ________________________________________________

We hereby undertake to comply with the terms and conditions set forth in this confidentiality agreement.

Date and place of signature:

Signature:

© FB Juris / idroit.co