NDA: Non-Disclosure Agreement

NON-DISCLOSURE AGREEMENT

This Agreement is made on __________, 20_ (“Effective Date”)

BETWEEN

(1) __________, a company registered in __________, whose registered office is located at: __________, the __________ (“__________”); and

(2) [PLEASE INSERT THE NAME OF THE COMPANY], a company incorporated in [PLEASE INSERT THE PLACE OF INCORPORATION], whose registered office is located at: [PLEASE INSERT THE ADDRESS] (“Company”).

Collectively referred to as the “Parties” and each a “Party”.

WHEREAS

(i) The Parties wish to work on __________ assessment in __________ site and other engineering activities related to new sites construction (the “Potential Engagement”) which may require the disclosure of Confidential Material (as defined below);

(ii) Confidential Material concerning ______, its subsidiaries or Affiliates (“______ Group”), whether prepared by ______ Group, its advisors or otherwise, may be provided in written, oral or electronic form by any entity within ______ Group (“______ Entity”); and

(iii) The Parties have agreed that all and any Confidential Material of one Party shall be kept confidential by the other Party in accordance with the terms of this Non-Disclosure Agreement (the “Agreement”).

NOW IT IS HEREBY AGREED AS FOLLOWS:

1. DEFINITIONS:

(a) “Affiliate” means with regard to any person another person, which directly or indirectly controls, is controlled by, or is under the common control with such Affiliate, including, inter alia, (i) any affiliated person (as determined by applicable laws), (ii) any parent, subsidiary, or dependent person, (iii) any participant (shareholder) of the Affiliate, (iv) a person in which the Affiliate is a participant/shareholder, (v) a person in which Affiliate’s participant/shareholder is a participant/shareholder, (vi) a person entering into the same group of persons as the Affiliate; and

(b) “Capacity”: as agent, consultant, director, employee, owner, partner, shareholder or in any other capacity;

(c) “Confidential Material” means and includes:

- all information (delivered in a written, oral or other form) and material (whether electronically recorded, in writing or otherwise) disclosed to either Party, on or after the date of this Agreement by the other Party, relating directly or indirectly to the Potential Engagement and not disclosed in a public sources; 

- all information (delivered in a written, oral or other form) and material (whether electronically recorded, in writing or otherwise) relating directly or indirectly to the business affairs of the disclosing Party (or any Affiliate of that Party), all software, samples, devices, demonstrations, know-how, trade secrets and other materials of whatever description, whether subject to or protected by copyright, patent, trademark, registered or unregistered or otherwise disclosed, on or after the date of this Agreement by one Party to the other that aro not disclosed in a public sources; 

- the fact that the Parties are interested in or assessing the Potential Engagement and/or are discussing the Potential Engagement with each other; 

- the terms of any agreement reached by the Parties or proposed by either Party (whether agreed, concluded or executed) in connection with the Potential Engagement; and

- all notes, analyses, compilations, spread sheets, data, reports, invoices, studies, interpretations or other documents furnished to the Party or its Representatives (as defined below) or prepared by the recipient Party, or its Representatives to the extent such materials reflect or are based upon, in whole or in part, the Confidential Material.

(d) “Restricted Business” means the business of ______ and any ______ Entity;

(e) “Restricted Customer” means any firm, company or person who, on and after the Effective Date was a customer or a prospective customer of or was in the habit of dealing with ______ or any ______ Entity; and

(f) “Restricted Person” means anyone employed or engaged by ______ or any ______ Entity and who could materially damage the interests of ______ or any ______ Entity if they were involved in any Capacity in any business concern which competes with any Restricted Business.

2. OBLIGATION OF CONFIDENTIALITY

2.1. The Parties acknowledge that the Confidential Material supplied or to be supplied by either of them to the other is proprietary to the disclosing Party or its Affiliates and acknowledge that it is of a confidential nature. 

2.2. Unless required by law, the Party receiving Confidential Material will not, and will direct its Representatives and Affiliates not to, disclose to any person (including any governmental agency, authority or official or any third party) either the fact that discussions or negotiations are taking place concerning the Potential Engagement or any of the terms, conditions or other facts with respect to the Potential Engagement, including the status thereof or that Confidential Material has been made available to it.

2.3. Each Party will at all times keep Confidential Material communicated by the other Party to it secret and will not use such material in any manner other than for the Potential Engagement without the prior written consent of the disclosing Party.

2.4. Neither Party shall without the prior written consent of the disclosing Party disclose, publish, divulge, confirm or deny, circulate, re-produce, adapt (or authorize or permit anyone else to do any of the same in respect of) any Confidential Material disclosed or communicated to it by the other Party unless (i) permitted by paragraph 5 below or (ii) unless required to do so by law or by the order or ruling of a court or tribunal, judicial or regulatory body or recognized stock exchange of competent jurisdiction, (in which case the disclosing Party will, unless prohibited from doing so, notify the other Party promptly in writing of that fact and in any event, prior to making such disclosure).

2.5. Each Party shall be able to show its compliance with this Agreement upon the request of the disclosing Party, in connection with data protection assessments of the disclosing Party or data protection audits of competent authorities.

3. TECHNICAL AND ORGANISATIONAL MEASURES

3.1. Each Party shall take all appropriate technical and organizational measures from the unauthorized or accidental access, destruction, modification, blocking, copying, distribution, as well as from other illegal actions of unauthorized persons regarding the Confidential Material. This includes storing the Confidential Material on protected servers, and limited access to the Confidential Material only by the persons involved in the Potential Engagement. Employees involved in the Potential Engagement and having access to the Confidential Material shall keep strict confidentiality and prevent unauthorized access to the Confidential Material.

3.2. The Parties acknowledge that the Confidential Material may contain personal information. Such information shall be protected according to all requirements under the General Data Protection Regulation of the European Union. To comply with the protection obligations, the Parties may conclude separate agreements that will govern the treatment of the personal information.

4. DISCLOSURE TO REPRESENTATIVES

Each Party may disclose the Confidential Material to its directors, employees, advisers (and to such persons of its Affiliates), who may, in each such case, require access to the Confidential Material on a strict need-to-know basis solely for purpose of Potential Engagement (“Representatives”). Each Party undertakes to ensure that all Representatives to whom Confidential Material is disclosed shall (a) be informed of the confidential nature of the Confidential Material, (b) agree to keep the Confidential Material strictly confidential, and (c) be advised of the terms of this Agreement and comply with them. Each Party disclosing information to its Representatives agrees to be responsible for any breaches of any of the provisions of this Agreement by any Representative (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy that the other Party may have against Representatives with respect to such breach).

5. DATA BREACH

5.1. In case of a breach by the receiving Party of its obligations related to the Confidential Material, the receiving Party shall urgently, but no later than twenty-four (24) hours after having become aware of it, notify the disclosing Party about the breach. 

5.2. The notification about the breach referred to in paragraph 5.1 above shall include, at least, the following information: (a) the nature of the breach and, where possible, the categories and the scope of the concerned Confidential Material; (b) risks to the rights, business or income of the Parties or Affiliates and the likely consequences of the breach; (c) contact details of the person or the department responsible for the breach on behalf of the receiving Party; (d) information about the measures taken or proposed to be taken to mitigate possible adverse effects of the breach.

6. RETURN, DELETION, AND RECTIFICATION

6.1. The Confidential Material and all copies thereof shall be deleted or returned to the disclosing Party by the other Party within seven (7) days of a request for such return or deletion by the disclosing Party.

6.2. The Confidential Material shall be rectified by the receiving Party within seven (7) days of a request for such rectification by the disclosing Party.

7. LIMITATIONS

Neither Party shall have any obligation to the other with respect to any information which:

- is or becomes publicly known otherwise than as a consequence of a breach of this Agreement by the Party receiving the Confidential material;

- is developed by the Party independently of and without reference to anything provided to such Party by the disclosing Party, provided that the fact and details of such independent development was disclosed to the disclosing Party; or

- is obtained by the recipient Party from a bona fide third Party having free right of disposal of such information provided that the source of such information is disclosed to the disclosing Party.

8. RESTRICTIVE COVENANTS

8.1. In order to protect the Confidential Material and business connections of ______ and each ______ Entity to which the Company has access as a result of the Potential Engagement, the Company covenants with ______ that it shall not for the entire term of this Agreement and for 5 (five) years after termination or expiration thereof:

8.1.1. canvass, solicit, approach or endeavor to entice away from ______ or any ______ Entity the business of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition with any Restricted Business;

8.1.2. induce or attempt to induce a Restricted Customer to cease conducting, or to reduce the amount of business conducted with, or to vary adversely the terms upon which it conducts business with ______ or any ______ Entity, or do any other thing which is reasonably likely to have such an effect;

8.1.3. deal or contract with any Restricted Customer for or be involved with the provision of goods or services to that Restricted Customer in competition with any Restricted Business;

8.1.4. offer to employ or engage or otherwise solicit or entice away, or endeavor to solicit or entice away or make any attempt to do so, from ______ or any ______ Entity any Restricted Person;

8.1.5. employ or engage or otherwise facilitate the employment or engagement of any Restricted Person, or make any attempt to do so, whether or not such person would be in breach of contract as a result of such employment or engagement; or

8.1.6. take any action intended to or likely to interfere with the Restricted Business or ______’s relationship with third parties.

8.2. The undertakings in clause 8.1 are intended for the benefit or, and shall be enforceable by, ______ and any ______ Entity and apply to actions carried out by the Company in any Capacity and whether directly or indirectly, on its own behalf or on behalf of, or jointly with, any other person.

8.3. Each of the undertakings in clause 8.1:

8.3.1. is considered fair and reasonable by the Parties;

8.3.2. is a separate undertaking by the Company; and

8.3.3. shall be enforceable separately and independently of any person’s rights to enforce any one or more of the other undertakings contained in that clause.

9. RELIEF OTHER THAN DAMAGES

Each Party acknowledges and agrees that, in the event of a default by the other, damages may not be a sufficient remedy for the disclosing Party. Accordingly, in addition to other remedies, the disclosing Party shall have the right to seek injunctive relief or specific performance of the other Party's obligations. Any such remedy shall not be deemed to be exclusive or all-inclusive and shall be in addition to any and all other remedies which may be available to the Parties under this Agreement or by operation of applicable law.

10. RIGHTS TO THE CONFIDENTIAL MATERIAL

All rights of whatever nature in and to the Confidential Material (and for the avoidance of doubt to all matters referred to therein) are reserved by the disclosing Party and no rights or licenses in or to the Confidential Material are granted to the other Party.

11. DISCLAIMER

Each Party understands and acknowledges that the Confidential Material is supplied to the other Party solely to assist that Party with the Potential Engagement and that neither the other Party nor any of its personnel is making any representation or warranty, express or implied, as to the accuracy, adequacy or completeness of the Confidential Material disclosed, and that neither the other Party nor any of its personnel will have any liability to any person resulting from any use of the Confidential Material. Each Party further acknowledges that it will rely exclusively on the results of its own investigations, together with such express warranties or indemnities (if any) as may be given in any agreement made following the supply of the Confidential Material pursuant to this Agreement.

12. LAW AND JURISDICTION

12.1. This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of the ______s.

12.2. All disputes, disagreements or claims, arising out of this Agreement or in connection with it, including any question regarding its existence, performance, violation, termination or invalidity, must be referred to and finally resolved by the courts of the ______s.

13. GENERAL CONDITIONS

13.1. This Agreement includes the entire understanding of the Parties with respect to the subject matter hereof, unless otherwise agreed to in writing and signed by both Parties.

13.2. No failure or delay by either Party in exercising any rights, power or legal remedy available to it hereunder shall operate as a waiver thereof.

13.3. This Agreement pertains to Confidential Material that is disclosed during the period commencing with the Effective Date and ending two (2) years after the Effective Date and shall expire one (1) year after the end of this period.

13.4. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any party may enter into this Agreement by executing a counterpart. Each Party shall comply with its responsibilities regarding the Confidential Material for one (1) year after the expiration of this Agreement.

13.5. If one or more provisions of this Agreement for any reason be declared invalid, illegal or unenforceable in all respects, the invalidity, illegality or unenforceability of such provision(s) shall not affect any other provisions of the Agreement, with this Agreement shall be construed, as if such invalid, illegal or unenforceable provision had not been set out therein. Performance of obligations under the Agreement by way as close to the original terms and conditions.

IN WITNESS whereof the Parties hereto have executed this Agreement the day and year first