Sample:
Non-Disclosure Agreement
As at: January, 1st 2017
Introduction
Businesses conclude a large number of agreements during the course of their business activities. The Hesse chambers provide sample agreements as orientation tools.
At the same time, businesses are advised to obtain expert advice from chambers of commerce and industry or lawyers with regard to specific issues under contract law. A list of chambers of commerce and industry in Hesse is attached in the annex.
Information regarding the use of the sample agreement:
This form was prepared with the utmost care, but does not purport to be complete and concrete. It should be understood as a check list with helpful formulations, and is only designed to provide an idea of how the typical interests espoused by the parties can be properly balanced. It does not absolve the user from conducting his own diligent review.For ease of language, the use of both genders was omitted in places where a gender-neutral formulation was not possible. In these cases, the male terms are deemed to also include the female gender. The sample agreement is only a suggestion for possible provisions. Many definitions can be freely arranged. The user can also select different formulations. Before adopting contents in an unchanged form, it is necessary to consider, taking into account your own interests, whether and what portions may need to be adjusted to a specific situation and legal developments. The Chamber of Commerce and Industry naturally does not have any control over this process and therefore does not assume any liability for any impacts on the parties' legal position. Liability for ordinary negligence is excluded in principle. If you require a customised agreement, please contact your lawyer.
Non-Disclosure Agreement *)
Regarding a new development / technical idea / invention
...... - hereafter "Development" -
between the inventor
......
- hereafter "Inventor" -
and the company interested in a license or purchase
......
- hereafter "Interested Party" -
Section 1
The Interest Party and Inventor intend to conclude a contract (e.g. know-how agreement, purchase contract, license agreement etc.) regarding their collaboration in the following area
...... for which the development / technical idea / invention will be used.
In view of the above, the parties agree to keep the mutually provided secret insights and information regarding the development / technical idea / invention, particularly in the context of innovations, presentations, trials and discussions, in confidence. They will undertake all measures that are required to prevent other parties from gaining knowledge of and utilising such information. To this end, workers and employees must also be committed to confidentiality, insofar as they are not already obliged to confidentiality under their employment contracts.
Section2
The Interested Party commits not to utilise the mutually communicated information on its own without the express written approval of the Inventor.
The Inventor reserves the exclusive and unlimited right to submit an application for industrial property rights.
*) Please note information for users!
Section 3
The confidentiality obligation does not apply to Developments that are already apparent (that are public knowledge, are considered state of technology) and are therefore no longer eligible for protection. If a Development becomes evident at a later time, this obligation shall expire as of that date.
Section4
This non-disclosure obligation also applies if the intended agreement regarding a collaboration (section 1 sentence 1) is not established or is terminated, except if the Development has become apparent, whereby the burden of proof shall rest on the Interested Party.
The parties will immediately return to the respective provider of information the documents that they received from the other party in connection with the Development etc., after it becomes apparent, the declaration of intent is terminated pursuant to section 1 sentence 1 or the agreement regarding the collaboration is terminated. Files and all copies created in this regard will be deleted from all data carriers or destroyed if in material form.
Section 5
Without prejudice to a possible damage compensation claim, the two parties commit to pay a contract penalty of EUR ...... for each culpable breach of this agreement.
Section 6
This contract is subject to German law.
The court at the inventor's domicile shall have local jurisdiction over disputes from this agreement, if the Interested Party is a business person.
Note:
A resolution agreement and/or arbitration agreement may be inserted at this point. Regarding the arrangement of a resolution clause and/or arbitration clause - see explanation below!
Section 7
In the event one or more provisions of this agreement are found to be invalid, it shall not affect the validity of the remaining provisions. The Parties commit to replace the invalid provision with one that most closely corresponds with the economic purpose of the invalid provision.
......
City, DateSignature
......
City, DateSignature
Comments
re: Section 5:
The amount of the contract penalty can be freely negotiated by the parties to the agreement.
With regard to agreements containing general terms and conditions, please note that courts may object to a contract penalty and deem it null and void if it exceeds "reasonable economic limits". A contract penalty included in the general terms and conditions must be reasonably proportionate to the wages earned by the principal through his performance, also in consideration of their pressure-inducing and compensatory function. (For example, the Federal Court of Justice takes the view that a contract penalty in the construction industry that exceeds 5% of the contract sum is null and void).
re: Section 6:
Sample resolution clause:
The contracting parties commit to implement resolution proceedings in the case of differences of opinion, with the objective of establishing a fair agreement that is in accordance with the interests of the parties by way of a mediation with the support of a neutral mediator, taking into account the economic, legal, personal and social situation. All disputes that arise in connection with this agreement or regarding its validity, will be mediated in accordance with the Rules of Mediation of the Chamber of Commerce and Industry ...... (e.g. XXXXX = Name of nearest chamber with mediation office) before the involvement of the courts.
The following arbitration clause may also be agreed in addition to the medication clause:
An agreement with only one arbitration clause is also a possibility.
Where an arbitration clause is agreed, section 16 sentence 2 must be deleted.
Important:
If the party is not a business person, the arbitration clause must be signed in a separate agreement.
Sample arbitration clause:
All disputes arising in connection with the agreement or regarding its validity shall be conclusively decided in accordance with the Rules of Arbitration of the Chamber of Commerce and Industry ...... in exclusion of regular legal recourse. Judicial dunning procedures shall remain admissible however.
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