The Non-Disclosure Agreement (NDA): free document template to download

Non Disclosure Agreement {document Template}

Table of contents

1. Definitions
2. Undertaking
3. Information
4. Confidentiality Measures
5. Exceptions
6. No Warranty
7. Third parties
8. No offer
9. Remedies
10. Termination
11. Pre-contract discloure
12. Waivers/Amendments
13. Assignment
14. Invalidity
15. Counterparts
16. Notices
17. Governing Law

THIS AGREEMENT is made on [DAY / MONTH / 2020]
BETWEEN

1. [COMPANY NAME] (“Company”)] [(registered number [COMPANY NUMBER])] whose registered office is situated at [Address]; and
2. [COMPANY NAME] [(registered number [COMPANY NUMBER])] whose registered office is situated at [REGISTERED ADDRESS].

BACKGROUND

• The parties wish to discuss and exchange information relating to [PURPOSE OF INFORMATION TRANSFER] (the “Project”). 
• In order to enable the parties to do so, either of the parties may deem it necessary to disclose certain of its Confidential Information (as defined in clause 1) to the other party.

IT IS HEREBY AGREED AS FOLLOWS

1. Definitions

Term	Meaning
“Confidential Information”	(a) any information (whether written, oral, in electronic form or in any other media) that is disclosed in connection to the Project by or on behalf of a party (the “Discloser”) or one of the Discloser’s Group Companies to the other party (the “Recipient”) or any other Recipient Party whether before, on or after the date of this Agreement; and/or (b) the existence of the Project or any discussions or documents in relation to it (including the terms of this Agreement)
“Group Companies”	in respect of a party, its Parent Undertakings, its Subsidiary Undertakings and the Subsidiary Undertakings of any of its Parent Undertakings from time to time  (“Parent Undertaking” and “Subsidiary Undertaking” having the meaning set out in section 1162 Companies Act 2006)
“Recipient Parties”	the Recipient, the Recipient’s Group Companies and their officers, directors, employees, consultants and professional advisers; and “Recipient Party” means any of them
“Working Day”	a day that is not a Saturday, Sunday or public or bank holiday in {country / territory}

2. Undertaking
   1. In consideration of the disclosure of Confidential Information, the Recipient will, subject to clause ‎5:
      1. use all Confidential Information so disclosed exclusively for the Project; 
      2. keep the Confidential Information secret and will only disclose it in the manner and to the extent expressly permitted by this Agreement;
      3. only make such copies, summaries, extracts, transcripts, notes, reports, analyses and recordings (in any form of media) that use, contain or are based on or derived from Confidential Information as are reasonably necessary to complete the Project; and
      4. without prejudice to clause ‎4, keep the Confidential Information safe and secure and apply to it documentary and electronic security measures that match or exceed those the Recipient operates in relation to its own confidential information and will never exercise less than reasonable care.
3. Information is the Discloser’s Property
   1. The Discloser, one of its Group Companies or its or their licensors owns all right, title and interest in the Confidential Information and, save as is provided by this Agreement no licence or right to use any patent, copyright, registered design, unregistered design, trademark, trade name or similar right or any right to use any Confidential Information or trade secrets is granted by the Discloser or any of the Discloser’s Group Companies or its or their licensors.
   2. The Recipient (and each Recipient Party) may retain a copy of any Confidential Information to the extent required to do so for legal or regulatory purposes or by the rules of any professional body. Any retained Confidential Information (including, without limitation, any Confidential Information that cannot be returned or which it has not been technically feasible to permanently delete) will remain subject to the other provisions of this Agreement and may only be used for the purposes for which it has been required to be retained.
4. Confidentiality Measures
   1. Without prejudice to clause 2.1, to secure the confidentiality attaching to the Confidential Information, the Recipient shall:
      1. keep separate all Confidential Information and all information generated by the Recipient based thereon from all documents and other records of the Recipient:
      2. not use, reproduce, transform, or store any of the Confidential Information in an externally accessible computer or electronic information retrieval system or transmit it in any form or by any means whatsoever outside of its usual place of business;
      3. allow access to the Confidential Information exclusively to those employees and professional advisers of the Recipient who have reasonable need to see and use it for the purposes of its evaluation by the Recipient and shall inform each of such employees and professional advisors of the confidential nature of the Confidential Information and of the obligations on the Recipient in respect thereof; and
      4. on request of the Discloser deliver up to the owner or destroy at the request of the owner all documents and other material in the possession custody or control of the Recipient that bear or incorporate any part of the Confidential Information and confirm in writing that it has done so.
5. Exceptions
   1. Subject to clause 5.2, the foregoing restrictions shall not apply to any Confidential Information which:
      1. the Recipient can prove by documentary evidence produced to the Discloser within 28 days of disclosure that such Confidential Information was already in the possession of the Recipient before the disclosure hereunder to the Recipient;
      2. at the time of disclosure was in the public domain or subsequently becomes generally available to the public in printed publications in general circulation in the United Kingdom or elsewhere through no act or default on the part of the Recipient; or
      3. is, following the date of this Agreement, disclosed to the Recipient without any obligations of confidence by a third party who has not derived it directly or indirectly from the other party.
   2. Clause 5.1.3 will not apply to the matters referred to in paragraph (b) of the definition of Confidential Information.
6. No Warranties
   1. Neither the Discloser nor any member of the Discloser’s Group makes any warranty, representation, statement or undertaking (whether express or implied) in respect of the accuracy, reasonableness or completeness of the Confidential Information. 
   2. The Recipient:
      1. will not (and the Recipient will procure that no Recipient Party will) rely on the Confidential Information; and
      2. agrees that neither it (nor any other Recipient Party) will have any remedy against the Discloser, or any other members of the Discloser’s Group in respect of the inaccuracy, unreasonableness or incompleteness of any Confidential Information.   
   3. Nothing in this Agreement will operate to exclude or restrict any person’s liability (if any) for its fraud or fraudulent misrepresentation or the fraud or fraudulent misrepresentation of a person for whom it is vicariously liable.
7. Third Parties
   1. Each party hereto undertakes that should it commit any breach of its obligations under this Agreement, the party in breach shall take all reasonable steps to remedy the breach. Furthermore each party will procure that each of the Recipient Parties comply with the obligations under this Agreement as if it were a party hereto.
   2. The requirements of this clause 7 are without prejudice to any other legal or equitable remedies to which any party may be entitled.
   3. ** Choose one of the following clauses. If Company will be disclosing confidential information of a Group of companies then you may prefer the second option which would allow the relevant Group companies to enforce the contract**:
      • [The parties do not intend that any term of this Agreement will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person other than the parties.]
      • [The Discloser’s Group Companies shall be entitled to enforce this Agreement subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999 and the terms of this Agreement.  Save as provided in this clause 7.3 the parties do not intend that any term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999.]
8. No Offer
   1. It is further acknowledged and confirmed that information made available to any party or its advisers prior to, in the course of or for the purpose of the discussions or negotiations, will not constitute an offer by either party or on its behalf, nor will any such information form the basis of any contract which would be constituted solely by such final agreement as may be executed by the parties.
9. Remedies
   1. The Recipient acknowledges and agrees that damages alone may not be an adequate remedy for breach of this Agreement by the Recipient or any other Recipient Party. Accordingly, the Discloser and any member of the Discloser’s Group will be entitled, without having to prove special damages, to equitable relief (including injunction and specific performance) for any breach or threatened breach of such clauses by the Recipient or any other Recipient Party.
10. Termination
    1. This Agreement shall commence at the date of signature and shall be subject to the provisions of clause 2 and continue in force until the completion of the Project or by any party giving to the other party one months notice in writing, whichever is the earlier.
    2. Termination of this Agreement is without prejudice to any rights, obligation, claims (including claims for damages for breach) and liabilities which have accrued prior to termination.
11. Pre-contract Disclosure
    1. The Recipient agrees that the obligations imposed by this Agreement in relation to Confidential Information extend to any Confidential Information which has been, or may have been, supplied to the Recipient or any of the Recipient Parties prior to the date of this Agreement, despite the absence of a written agreement, this Agreement merely recording in writing the oral confidentiality obligations under which the Recipient or relevant Recipient Party received the Confidential Information in question.
12. Waivers/Amendments
    1. A delay in exercising or failure to exercise a right or remedy under or in connection with this Agreement will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
13. Amendments
    1. This Agreement shall not be varied or amended otherwise than by an instrument in writing signed on behalf of all parties by their duly authorised representatives.
14. Assignment
    1. None of the parties hereto shall assign this Agreement or any part thereof or any benefit or interest herein without having first obtained the prior written consent of the other party.
15. Invalidity
    1. The invalidity or unenforceability of any part of this Agreement shall not affect the validity or enforceability of the remainder.
16. Counterparts
    1. This Agreement may be executed in any number of counterparts each of which when executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
17. Notices
    1. Any notice or other communication given under or in connection with this Agreement will be in writing, in the English language, marked for the attention of the specified representative of the party to be given the notice or communication and:
       1. sent by pre-paid first class registered post to that party’s address;
       2. delivered to or left at (but not, in either case, by post) that party’s address; or
       3. sent by email to that party’s email defined below. 
    1. Any notice or other communication given under or in connection with this Agreement will be in writing, in the English language, marked for the attention of the specified representative of the party to be given the notice or communication and:
       1. sent by pre-paid first class registered post to that party’s address;
       2. delivered to or left at (but not, in either case, by post) that party’s address; or
       3. sent by email to that party’s email defined below. 

Party One	Party Two
[Insert address]	[Insert address]
[Email]	[Email]
For the attention of [Insert Job Title]	For the attention of [Insert Job Title]

•  
  2. Any notice or communication given in accordance with clause 17.1 will be deemed to have been served:
     1. if given as set out in clause 17.1.1, at 9.00am on the second Working Day after the date of posting; 
     2. if given as set out in clause 17.1.2, at the time the notice or communication is delivered to or left at that party’s address; and
     3. if given as set out in clause 17.1.3, at the time the read request, which has been requested by the sender, has been received from the recipient.
  3. To prove service of a notice or communication it will be sufficient to prove that the provisions of clause ‎17.1 were complied with.
  4. This clause ‎17 will not apply to the service of any proceedings or other documents in a legal action to which the Civil Procedure Rules apply or in an arbitration.

18. Governing Law
    1. This Agreement and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales. 
    2. Each party agrees that the courts of England and Wales have non-exclusive jurisdiction to determine any dispute arising out of or in connection with this Agreement (including in relation to any non-contractual obligations). 
    1. This Agreement and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales. 
    2. Each party agrees that the courts of England and Wales have non-exclusive jurisdiction to determine any dispute arising out of or in connection with this Agreement (including in relation to any non-contractual obligations). 
    1. This Agreement and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales. 
    2. Each party agrees that the courts of England and Wales have non-exclusive jurisdiction to determine any dispute arising out of or in connection with this Agreement (including in relation to any non-contractual obligations). 
    1. This Agreement and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales. 
    2. Each party agrees that the courts of England and Wales have non-exclusive jurisdiction to determine any dispute arising out of or in connection with this Agreement (including in relation to any non-contractual obligations). 

IN WITNESS whereof the parties have hereunto set their hands by a duly authorised representative the day and year first above written

Signed for and on behalf of [Company]	Signed for and on behalf of [Client Name]
by:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _	by:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Print name: _ _ _ _ _ _ _ _ _ _ _ _ _ _	Print name: _ _ _ _ _ _ _ _ _ _ _ _ _ _
Title:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _	Title:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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