European IPR Helpdesk

Non-Disclosure Agreement
(Template)

Disclaimer

This sample document has been produced by the European IPR Helpdesk, based on the experiences and acknowledg-
ments gathered during the performance of its activities, including the Helpline support service, awareness raising activi-
ties and feedback from users on publications. The European IPR Helpdesk is managed by the European Commission’s
Executive Agency for Small and Medium-sized Enterprises (EASME), with policy guidance provided by the European
Commission’s Enterprise and Industry Directorate – General. Even though the contents of this document have been pro-
vided with the financial support of the EU, the positions expressed are those of the authors and do not necessarily reflect
the official opinion of EASME or the European Commission. Please see our full disclaimer at:
http://www.iprhelpdesk.eu/disclaimer

This document is intended to be or to provide initial guidance and should be tailored to meet your specific requirements.
It should not be construed as legal advice for any particular facts or circumstances.

Although the European IPR Helpdesk endeavours to deliver a high quality service, no guarantee can be given on the cor-
rectness or completeness of the content of this document and neither the European Commission, nor EASME nor the
European IPR Helpdesk consortium members are responsible or may be held accountable for any loss suffered as a result
of reliance upon the content of this work.

© European Union 2014

The European IPR Helpdesk | Page 1 of 8

 NON-DISCLOSURE AGREEMENTS
Confidentiality is an extremely important issue for participants in R&D projects, from the
setting-up (even during earliest discussions on the assessment of participation), to the
implementation and exploitation phases.

Exchanging valuable information with other partners is generally a necessity that regu-
larly occurs in collaborative initiatives or undertakings. Accordingly, confidentiality issues
and measures should be taken into consideration in order to safely exchange infor-
mation, facilitating the project development and ensuring the non-disclosure of sensitive
technology, business or commercial confidential information. Therefore, the signature of
a confidentiality agreement or non-disclosure agreement (NDA) at the proposal stage or
even before, the inclusion of confidentiality clauses in the consortium agreement, and
compliance with confidentiality obligations during the whole life of the project and after,
are among others very important steps to keep confidential information secret in order
to maintain a competitive edge.

Deciding to become involved in a project, business or commercial relationship requires

discussions and the exchange of information between people from different organisa-
tions, companies or institutions with different background knowledge and interests. It
might involve giving written or oral information to a third party in order to describe pro-
ject ideas, revealing know-how, or defining scope, objectives, and tasks for planning or
arranging a proposal or for preparations made before a project starts.

Confidentiality agreements or NDAs provide protection and more security to an individ-

ual or organisation that is about to share or make available information to another indi-
vidual or organisation by ensuring that confidential information will be used only for the
permitted purposes agreed between the signatories of the agreement and will not be
used or revealed to third parties without consent; and furthermore that if confidential
information is revealed or made public, breaching the terms provided under the agree-
ment, then liability, damages, cessation or preventive measures can be claimed.

Confidential information or specific documentation should be only revealed under confi-

dentiality commitments settled in advance otherwise it might be used for the benefit of
others, excluding and harming the interest of the owner of the confidential information.

The following NDA template may be used, taking into consideration the concrete situa-
tion or needs of its users.

The European IPR Helpdesk | Page 2 of 8

 NON-DISCLOSURE AGREEMENT

THIS AGREEMENT [the Agreement] is entered into on this [insert number of day] day of
[insert Month and year] by and between:

1. [Insert official name of the potential partner or participant], having its registered office
or based in [insert the Legal Address of the Entity] hereinafter referred to as [the Disclos-
er] and
2. [Insert official name of the potential partner or participant], having its registered of-
fice or based in [insert the Legal Address of the Entity] hereinafter referred to as [the
Recipient]

WHEREAS:
The Discloser and Recipient hereto desire [to participate in early discussions regarding
the entering into future collaboration as a European Funded Project in the field of (….)] or
[to submit a proposal for a collaborative project in response to the call (identify the call)
under (identify the EU-funded Programme)] or [to evaluate entering into partnership or
business collaboration for the purpose of (identify the undertaking intended to perform)]
Throughout the aforementioned discussions, the Discloser may share proprietary infor-
mation or Confidential Information with the Recipient subject to the terms and cove-
nants set forth below.

NOW IT IS AGREED AS FOLLOWS:

1. Confidential Information

1.1 For the purposes of this Agreement, Confidential Information means any data or
proprietary information of the Discloser that is not generally known to the public or has
not yet been revealed, whether in tangible or intangible form, whenever and however
disclosed, including, but not limited to:

(i) any scientific or technical information, invention, design, process, procedure,

formula, improvement, technology or method;

(ii) any concepts, samples, reports, data, know-how, works-in-progress, designs,

drawings, photographs, development tools, specifications, software pro-
grams, source code, object code, flow charts, and databases;
(iii) any marketing strategies, plans, financial information, or projections, opera-
tions, sales estimates, business plans and performance results relating to the

The European IPR Helpdesk | Page 3 of 8

 Discloser’s past, present or future business activities, or those of its affiliates,
subsidiaries and affiliated companies;

(iv) trade secrets; plans for products or services, and customer or supplier lists;

(v) any other information that should reasonably be recognized as Confidential

Information by the Discloser.

1.2 The Discloser and the Recipient agree hereby that Confidential Information needs not
to be novel, unique, patentable, copyrightable or constitutes a trade secret in order to
be designated Confidential Information and therefore protected.

1.3 Confidential Information shall be identified either by marking it, in the case of writ-
ten materials, or, in the case of information that is disclosed orally or written materials
that are not marked, by notifying the Recipient of the confidential nature of the infor-
mation. Such notification shall be done orally, by e-mail or written correspondence, or
via other appropriate means of communication.

1.4 The Recipient hereby acknowledge that the Confidential Information proprietary of
the Discloser has been developed and obtained through great efforts and shall be re-
garded and kept as Confidential Information.

1.5 Notwithstanding the aforementioned Confidential Information shall exclude infor-

mation that:

(i) is already in the public domain at the time of disclosure by the Discloser
to the Recipient or thereafter enters the public domain without any breach of
the terms of this Agreement;

(ii) was already known by the Recipient before the moment of disclosure
(under evidence of reasonable proof or written record of such disclosure);

(iii) is subsequently communicated to the Recipient without any obligation of

confidence from a third party who is in lawful possession thereof and under no
obligation of confidence to the Discloser;

(iv) becomes publicly available by other means than a breach of the confi-
dentiality obligations by the Recipient (not through fault or failure to act by the
Recipient);

(iv) is or has been developed independently by employees, consultants or

agents of the Recipient (proved by reasonable means) without violation of the
terms of this Agreement or reference or access to any Confidential Information
pertaining to the Discloser.

The European IPR Helpdesk | Page 4 of 8

2. Purpose of the Disclosure of Confidential Information

The Discloser and Recipient will enter on discussions regarding future collaboration to-
ward European Funded Project in the field of [….] or [will submit a proposal for a collabo-
rative project in response to the call (identify the call) under (identify the EU funded Pro-
gramme)] or [will enter into or evaluate alternatives for partnership or collaboration with
[name of the Recipient] for the purpose of [identify the undertaking intended to perform
or achieve].

3. Undertakings of the Recipient

3.1 In the context of discussions, preparations or negotiations, the Discloser may disclose
Confidential Information to the Recipient. The Recipient agrees to use the Confidential
Information solely in connection with purposes contemplated in this Agreement and not
to use it for any other purpose or without the prior written consent of the Discloser.
3.2 The Recipient will not disclose and will keep confidential the information received,
except to its employees, representatives or agents who need to have access to the Con-
fidential Information for the purpose of carrying out their duties in connection with the
permitted purposes specified in clause 2. The Recipient will inform them about the con-
fidential quality of the information provided and will ensure that their agreement is ob-
tained to keep it confidential on the same terms as set forth in this Agreement. Hence
the Recipient will be responsible for ensuring that the obligations of confidentiality and
non-use contained herein will be strictly observed and will assume full liability for the
acts or omissions made for its personnel representatives or agents.
3.3 The Recipient will use the Confidential Information exclusively for the permitted pur-
pose stated in clause 2 and not use the information for its own purposes or benefit.
3.4 The Recipient will not disclose any Confidential Information received to any third
parties, except as otherwise provided for herein.
3.5 The Recipient shall treat all Confidential Information with the same degree of care as
it accords to its own Confidential Information.
3.6 All Confidential Information disclosed under this Agreement shall be and remain un-
der the property of the Discloser and nothing contained in this Agreement shall be con-
strued as granting or conferring any rights to such Confidential Information on the Recip-
ient. Principally, nothing in this Agreement shall be deemed to grant to the Recipient a
licence expressly or by implication under any patent, copyright or other intellectual
property right. The Recipient hereby acknowledges and confirms that all the existing and
future intellectual property rights related to the Confidential Information are exclusive
titles of the Discloser. For the sake of clarity based in good faith, the Recipient will not
apply for or obtain any intellectual property protection in respect of the Confidential

The European IPR Helpdesk | Page 5 of 8

Information received. Likewise any modifications and improvements thereof by the Re-
cipient shall be the sole property of the Discloser.
3.7 The Recipient shall promptly return or destroy all copies (in whatever form repro-
duced or stored), including all notes and derivatives of the Confidential Information dis-
closed under this Agreement, upon the earlier of (i) the completion or termination of the
dealings contemplated in this Agreement; (ii) or the termination of this Agreement; (iii)
or at the time the Discloser may request it to the Recipient.

3.8 Notwithstanding the foregoing, the Recipient may retain such of its documents as
required to comply with mandatory law, provided that such Confidentiality Information
or copies thereof shall be subject to an indefinite confidentiality obligation.

3.9 In the event that the Recipient is asked to communicate the Confidential Information
to any judicial, administrative, regulatory authority or similar or obliged to reveal such
information by mandatory law, it shall notify promptly the Discloser of the terms of such
disclosure and will collaborate to the extent practicable with the Discloser in order to
comply with the order and preserve the confidentiality of the Confidential Information.
3.10 The Recipient agrees that the Discloser will suffer irreparable damage if its Confi-
dential Information is made public, released to a third party, or otherwise disclosed in
breach of this Agreement and that the Discloser shall be entitled to obtain injunctive
relief against a threatened breach or continuation of any such a breach and, in the event
of such breach, an award of actual and exemplary damages from any court of competent
jurisdiction.

3.11 The Recipient shall immediately notify upon becoming aware of any breach of con-
fidence by anybody to whom it has disclosed the Confidential Information and give all
necessary assistance in connection with any steps which the Discloser may wish to take
prevent, stop or obtain compensation for such a breach or threatened breach.

3.12 The Confidential Information subject to this Agreement is made available "as such"
and no warranties of any kind are granted or implied with respect to the quality of such
information including but not limited to, its applicability for any purpose, non-
infringement of third party rights, accuracy, completeness or correctness. Further, the
Discloser shall not have any liability to the Recipient resulting from any use of the Confi-
dential Information.

3.13 The Discloser is not under any obligation under this Agreement to disclose any Con-
fidential Information it chooses not to disclose.
3.14 Nothing in this Agreement shall be construed to constitute an agency, partnership,
joint venture, or other similar relationship between the Discloser and Recipient.

The European IPR Helpdesk | Page 6 of 8

4. Miscellaneous

4.1 Duration and Termination

4.1.1 This Agreement shall remain in effect for a term of [number of months or years]
term. Notwithstanding the foregoing, the Recipient’s duty to hold in confidence Confi-
dential Information that was disclosed during the term shall remain in effect indefinitely,
save otherwise agreed.

4.1.2 If the Discloser and Recipient succeed in the call for proposal referred to in clause 2
and sign the corresponding Grant Agreement (GA) and Consortium Agreement (CA), or
entered into partnership under any other kind of collaborative agreement (COA) or asso-
ciation agreement (AA), the non-disclosure provisions of the CA, COA and AA shall [sup-
plement or supersede] this Agreement. In the event that non-disclosure provisions are
not provided for the said private agreements in equal terms as stated herein, this
Agreement shall remain in force until the end of the collaboration undertaken or after
[months or years] of its termination.

4.2 Applicable Law and Jurisdiction

This Agreement shall be construed and interpreted by the laws of [choose the applicable
law]. The court of [choose the jurisdiction to settle disputes] shall have jurisdiction.

4.3 Validity
If any provisions of this Agreement are invalid or unenforceable, the validity of the re-
maining provisions shall not be affected. The invalid or unenforceable provision shall be
replaced by a valid and enforceable provision that will meet the purpose of the invalid or
unenforceable provision as closely as possible.
4.4 Subsequent Agreements
Ancillary agreements, amendments or additions hereto shall be made in writing.

4.5 Communications
Any notices or communications required may be delivered by hand or e-mail, mailed by
registered mail to the address of the Recipient/Discloser as indicated above. Any subse-
quent modification of addresses should be reasonably communicated in advance to the
effect of this Agreement.

The European IPR Helpdesk | Page 7 of 8

IN WITNESS WHEREOF, the Parties hereto have caused this Non-Disclosure Agreement
to be executed as of the date stated above.

FOR [insert name of participant or potential or current partner]

[insert name of representative]

[insert title]

Done at [place] on [date]

For more information, please consult

our fact sheets on “How to manage
confidential business information” and
“Non-disclosure agreement: a business
tool” which are available in our online
library:
http://www.iprhelpdesk.eu/node/1265
http://www.iprhelpdesk.eu/node/969

GET IN TOUCH
For comments, suggestions or further information, please contact

European IPR Helpdesk

c/o infeurope S.A.
62, rue Charles Martel
L-2134, Luxembourg

Email: [email protected]
Phone: +352 25 22 33 - 333
Fax: +352 25 22 33 – 334
www.iprhelpdesk.eu

The European IPR Helpdesk | Page 8 of 8