Confidentiality agreements - (CDA) - (or "non-disclosure agreements"
- NDA -) guarantee a safe exchange of confidential information, including
material and samples, between persons and/or legal entities. The following
elements should be considered as essential to the contractual contents:
The contracting parties,referring
to the persons/legal entities disclosing (owner or discloser) and receiving
(recipient) confidential information need to be
identified clearly within the document.
In order to ensure a basis for the joint understanding and
interpretation of the parties´ rights and obligations, a
statement of reasons and a
definition of terms (e.g. "confidential
Information"/"disclosure") is crucial. For all kinds of "confidential
information" it is highly advisable to mark or designate them as
"confidential".
The
use of confidential
information needs to be defined according to the purpose of the
disclosure and in order to make sure that the parties treat the confidential
information only as far as the intended purpose allows (e.g. use for evaluation
purposes, for research purposes, the technical or commercial assessment of an
invention or a product). At this point, it may be useful to explicitly state
that the disclosure of information does not imply the granting of any further
user rights, including licences for other purposes, such as exploitation, or
rights to analyse any received samples/material. The
material transfer agreement is a specific type of
confidentiality agreement whereby research material is transferred for internal
research purposes (see our Executive Summary on
Material
Transfer Agreements).
Exceptions to the confidentiality
obligation are usually included in every confidentiality agreement. They refer
to public domain information, information made accessible to the recipient by a
third party without confidentiality infringement, and information which the
recipient can prove to have known prior to the disclosure. Other exclusions can
relate to information which has been independently generated by the recipient
or to information which the disclosing party has agreed for disclosure in
writing. It is important to note that in any of these aforementioned cases, it
is the recipient who must provide evidence to this end.
The parties can agree on
persons
who have a
need to know the information,
possibly subcontractors, subsidiary companies, holding companies and partners
or researchers. In these cases the recipient should have these persons sign
confidentiality clauses reiterating the terms of the original confidentiality
agreement.
A
disclaimer is useful in order
to eliminate or reduce the owner's liability for damages resulting from the use
of erroneous or incomplete confidential information.
Intellectual property rights
should be reserved by specifying that no intellectual property rights, such as
copyrights on the provided documents, or possible patent rights on the revealed
invention, are conferred to the recipient. It should be stated that the
disclosure of information does not lead to the legal conferring or granting of
rights, unless some provision is expressly made for this.
The
confidentiality agreement
needs an explicitly defined
time period in
which the information is to be disclosed/exchanged for a certain purpose.
The
time period of the confidentiality obligation
itself has to be defined appropriately, mostly as a period which is
longer than the period of disclosure/ exchange of information and which
comprises the time period required for the appropriate protection of the
confidential information.
The parties may also wish to specify a term before which all the
confidential information, including samples and material provided to the
recipient, will have to be destroyed or returned to the owner.
Other clauses, such as a
penalty clause, a jurisdiction clause, etc.
can be added according to the individual interests of the parties.
(For more detailed information please consult the
extended
version of this document)
