Contract

Model Non-Disclosure Agreement

Dit is een model voor een uitgebreide geheimhoudingsovereenkomst opgesteld ten behoeve van UtrechtInc startups. Dit model is opgesteld om jullie te helpen bij het opzetten en uitbouwen van jullie bedrijf. Een geheimhoudingsovereenkomst kan gebruikt worden bij gesprekken met investeerders maar ook bij gesprekken met partners, samenwerkende bedrijven en andere derden. Dit is een uitgebreid model. Afhankelijk van het doel waarvoor het gebruikt wordt en de geheim te houden informatie kan ook gebruik worden gemaakt van het model voor een eenvoudige geheimhoudingsovereenkomst die eveneens via de UtrechtInc portal beschikbaar is.

Het is een working document. Als er bepalingen ontbreken die door jullie juist veel gebruikt worden of als er andere opmerkingen zijn, horen wij dat graag. Jullie feedback nemen we mee in een volgende versie. Ten minste eenmaal per jaar zullen de modellen aangepast worden.

Hoewel grote zorg is besteed aan het opstellen van dit model, kan Benvalor niet garanderen dat daarin altijd de laatste ontwikkelingen in de wetgeving en de rechtspraak zijn geïmplementeerd. Verder geldt dat er situaties en/of omstandigheden kunnen zijn waarin het model niet voorzien en waardoor deze niet of minder geschikt is voor de concrete toepassing die de gebruiker voor ogen staat. Het modelcontract dient enkel als voorbeeld. Benvalor garandeert dan ook niet dat dit modelcontract zonder meer geschikt is voor het specifieke doel waarvoor deze wordt gebruikt, het gebruik van dit model is dan ook voor eigen risico. Benvalor is niet aansprakelijk voor enigerlei schade die het gevolg is van of samenhangt met het gebruik van deze modelovereenkomst.

Voor vragen kun je contact opnemen met: Xxxxxx Xxx (088-3030038 of xxx@xxxxxxxx.xxx) of Xxxxxx Xxxxxxx (088-3030045 of xxxxxxx@xxxxxxxx.xxx).

Of kom naar het Legal Spreekuur tijdens UtrechtInc.onsult dat plaatsvindt in de eerste week van iedere maand.

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NON-DISCLOSURE AGREEMENT

This Non-Disclosure Agreement (“Agreement”) is made by and between

The private company with limited liability […], having its statutory seat and registered address at […] [number], [zipcode], [city], represented by Mr [….], hereinafter referred to as: “[Company A]”;

and

The private company with limited liability […], having its statutory seat and registered address at […] [number], [zipcode], [city], represented by Mr [….], hereinafter referred to as: “[Company B]”.

Whereas

[Company A] wishes to disclose Confidential Information (as defined below) to [Company B] in connection with [OMSCHRIJVING DOEL VAN DE INFORMATIE UITWISSELING] between [Company A] and/or its affiliates and [Company B] and/or its affiliates (the “Purpose”), and wishes to ensure that the Recipient (as defined below) maintains the confidentiality of Confidential Information of the Disclosing Party (as defined below). Parties have agreed to comply with the following terms in connection with the use and disclosure of Confidential Information.

Now therefore the parties have agreed to the following:

Definitions

Affiliate means with respect to each party, the legal entities that control, are controlled by, or under common control with, such party. Control as used in the previous sentence means the direct or indirect ownership of fifty percent (50%) or more of the equity interest in an entity, or the ability in fact to control the management decisions of such entity.

Confidential Information: all confidential information (however recorded, preserved or disclosed) disclosed by a party or its Representatives to the other party and that party's Representatives including but not limited to:

the fact that discussions are taking place concerning the Purpose and the status of those discussions;
the terms of this Agreement;
any information that would be regarded as confidential by a reasonable business person relating to:
1. the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the Disclosing Party and/or its Affiliates;
2. the operations, processes, product information, know-how, designs, trade secrets or software of the Disclosing Party and/or its Affiliates;
3. any commercial disputes of the Disclosing Party and/or its Affiliates; and
any information or analysis derived from Confidential Information.

but not including any information that:

is or becomes generally available to the public other than as a result of its disclosure by the Recipient or its Representatives in breach of this Agreement (except that any compilation of otherwise public information in a form not publicly known shall nevertheless be treated as Confidential Information); or

was available to the Recipient on a non-confidential basis prior to disclosure by the Disclosing Party; or
was, is or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient's knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Recipient; or
was lawfully in the possession of the Recipient before the information was disclosed to it by the Disclosing Party; or
the parties agree in writing is not confidential or may be disclosed; or
is developed by or for the Recipient independently of the information disclosed by the Disclosing Party

Disclosing Party: a party to this Agreement which discloses or makes available directly or indirectly Confidential Information.

Recipient: a party to this Agreement which receives or obtains directly or indirectly Confidential Information.

Representative: employees, agents, officers, advisers and other representatives of the Recipient.

Obligations of confidentiality
1. The Recipient shall keep the Disclosing Party's Confidential Information confidential and, except with the prior written consent of the Disclosing Party, shall, and shall procure that its Representatives shall:
  1. not use or exploit the Confidential Information in any way except for the Purpose;
  2. not disclose or make available the Confidential Information in whole or in part to any third party, except as expressly permitted by this Agreement;
  3. not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the Purpose (and any such copies, reductions to writing and records shall be the property of the Disclosing Party);
  4. keep separate the Confidential Information from all documents and other records of the Recipient; and
  5. apply at least the same security measures and degree of care to the Confidential Information as the Recipient applies to its own confidential information, which the Recipient warrants as providing adequate protection from unauthorised disclosure, copying or use;
2. The Recipient may only disclose the Disclosing Party's Confidential Information to those of its Representatives who need to know this Confidential Information for the Purpose, provided that:
  1. it informs these Representatives of the confidential nature of the Confidential Information before disclosure and obtains from its Representatives enforceable undertakings to keep the Confidential Information confidential in terms at least as extensive and binding upon the Representatives as the terms of this Agreement are upon the parties; and
  2. at all times, it is responsible for these Representatives' compliance with the obligations set out in this Agreement.
3. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental authority, or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of this disclosure as possible.
4. No party shall make, or permit any person to make, any public announcement concerning this Agreement, the Purpose or its prospective interest in the Purpose without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed) except as required by law or any governmental or regulatory authority (including, without limitation, any relevant securities exchange) or by any court or other authority of competent jurisdiction.
Return of information
1. At the first request of the Disclosing Party, the Recipient shall:
  1. destroy or return to the Disclosing Party all documents and materials (and any copies) containing, reflecting, incorporating, or based on the Disclosing Party's Confidential Information;
  2. erase all the Disclosing Party's Confidential Information from its computer systems or which is stored in electronic form (to the extent possible); and
  3. certify in writing to the Disclosing Party that it has complied with the requirements of this clause, provided that a Recipient may retain documents and materials containing, reflecting, incorporating, or based on the Disclosing Party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority and to the extent reasonable to permit the Recipient to keep evidence that it has performed its obligations under this Agreement. The provisions of this Agreement shall continue to apply to any such documents and materials retained by the Recipient pursuant to this clause.
2. If the Recipient develops or uses a product or a process which, in the reasonable opinion of the Disclosing Party, might have involved the use of any of the Disclosing Party's Confidential Information, the Recipient shall, at the request of the Disclosing Party, supply to the Disclosing Party information reasonably necessary to establish that the Disclosing Party's Confidential Information has not been used or disclosed.
Reservation of rights and acknowledgement
1. All Confidential Information shall remain the property of the Disclosing Party. Each party reserves all rights in its Confidential Information. No rights, including, but not limited to, intellectual property rights, in respect of a party's Confidential Information are granted to the other party and no obligations are imposed on the Disclosing Party other than those expressly stated in this Agreement.
2. Except as expressly stated in this Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information, or the accuracy or completeness of the Confidential Information.
3. The disclosure of Confidential Information by the Disclosing Party shall not form any offer by, or representation or warranty on the part of, the Disclosing Party to enter into any further agreement in relation to the Purpose.
4. The Recipient acknowledges that damages alone would not be an adequate remedy for the breach of any of the provisions of this Agreement. Accordingly, without prejudice to any other rights and remedies it may have, the Disclosing Party shall be entitled to the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach of any of the provisions of this Agreement.
5. The Recipient shall be liable to the Disclosing Party for the actions or omissions of the Recipient's Representatives in relation to the Confidential Information, as if they were the actions or omissions of the Recipient.
Warranty and indemnity
1. Each Disclosing Party warrants that it has the right to disclose its Confidential Information to the Recipient and to authorise the Recipient to use such Confidential Information for the Purpose.
2. Each Recipient shall indemnify and keep fully indemnified the Disclosing Party and its Affiliates at all times against all liabilities, costs (including legal costs on an indemnity basis), expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and other reasonable costs and expenses suffered or incurred by the Disclosing Party and its Affiliates) arising from any breach of this Agreement by the Recipient and from the actions or omissions of any Representative of the Recipient.
Term and termination
1. This Agreement will be effective from the date the last Party signs this Agreement and will continue in effect for a period of ten (10) years.
2. This Agreement may be terminated by each Party by written notice to the other Party at any time prior to the expiration of this Agreement. Any termination of this Agreement shall not affect the Receiving Party’s obligations hereunder with respect to Confidential Information that has been disclosed prior to termination of this Agreement and the corresponding rights of the Disclosing Party in relation thereto.
Entire agreement and variation
1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
2. Each party acknowledges that, in entering this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) other than as expressly set out in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud or fraudulent misrepresentation.
3. No variation of this Agreement shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives).
No waiver
1. Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, and shall not preclude or restrict any further exercise of that or any other right or remedy.
2. No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.
Assignment

9.1 Except to Affiliates or the purchaser of substantially all business assets to which this Agreement relates, no party may assign, sub-contract or deal in any way with, any of its rights or obligations under this Agreement or any document referred to in it.

No partnership

10.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

Governing law and jurisdiction
1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of The Netherlands.
2. The parties irrevocably agree to submit to the exclusive jurisdiction of the courts of Midden-Nederland, The Netherlands over any claim or matter arising under or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

[WANNEER MET EEN AMERIKAANSE PARTIJ (OF ANDERE PARTIJ WAAR NEDERLAND GEEN VERDRAG TER UITOEFENING VAN VONNISSEN MEE HEEFT GESLOTEN) ZAKEN WORDT GEDAAN 11.2 VERVANGEN DOOR ONDERSTAAND ARTIKEL OF ANDER ARBITRAGEBEDING]

11.2 All disputes arising in connection with the present contract, or further contracts resulting therefrom, shall be finally settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute. The arbitral tribunal shall be composed of three arbitrators. The place of arbitration shall be Utrecht. The arbitral procedure shall be conducted in the .English language.

IN WITNESS WHEREOF the parties hereto have caused this Agreement in the English language to be executed and delivered in duplicate, each of both copies constituting an original, by their duly authorized representatives on the dates indicated below.

□

________________________________

[Company A]

By: [ _ ]

Its: Director

Place:

Date:

□

__________________________________

[Company B]

By: [ _ ]

Its: Director

Place:

Date:

Benvalor Attorneys at Law ∙ Tax Lawyers (xxx.xxxxxxxx.xxx)

Document Metadata

Table of Contents

Contract

the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the Disclosing Party and/or its Affiliates;

the operations, processes, product information, know-how, designs, trade secrets or software of the Disclosing Party and/or its Affiliates;

any commercial disputes of the Disclosing Party and/or its Affiliates; and

not use or exploit the Confidential Information in any way except for the Purpose;

not disclose or make available the Confidential Information in whole or in part to any third party, except as expressly permitted by this Agreement;

not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the Purpose (and any such copies, reductions to writing and records shall be the property of the Disclosing Party);

keep separate the Confidential Information from all documents and other records of the Recipient; and

apply at least the same security measures and degree of care to the Confidential Information as the Recipient applies to its own confidential information, which the Recipient warrants as providing adequate protection from unauthorised disclosure, copying or use;

at all times, it is responsible for these Representatives' compliance with the obligations set out in this Agreement.

destroy or return to the Disclosing Party all documents and materials (and any copies) containing, reflecting, incorporating, or based on the Disclosing Party's Confidential Information;

erase all the Disclosing Party's Confidential Information from its computer systems or which is stored in electronic form (to the extent possible); and

Document Metadata

Contract

Definitions

the fact that discussions are taking place concerning the Purpose and the status of those discussions;

the terms of this Agreement;

any information that would be regarded as confidential by a reasonable business person relating to:

the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the Disclosing Party and/or its Affiliates;

the operations, processes, product information, know-how, designs, trade secrets or software of the Disclosing Party and/or its Affiliates;

any commercial disputes of the Disclosing Party and/or its Affiliates; and

any information or analysis derived from Confidential Information.

was available to the Recipient on a non-confidential basis prior to disclosure by the Disclosing Party; or

was, is or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient's knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Recipient; or

was lawfully in the possession of the Recipient before the information was disclosed to it by the Disclosing Party; or

the parties agree in writing is not confidential or may be disclosed; or

is developed by or for the Recipient independently of the information disclosed by the Disclosing Party

Obligations of confidentiality

The Recipient shall keep the Disclosing Party's Confidential Information confidential and, except with the prior written consent of the Disclosing Party, shall, and shall procure that its Representatives shall:

not use or exploit the Confidential Information in any way except for the Purpose;

not disclose or make available the Confidential Information in whole or in part to any third party, except as expressly permitted by this Agreement;

not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the Purpose (and any such copies, reductions to writing and records shall be the property of the Disclosing Party);

keep separate the Confidential Information from all documents and other records of the Recipient; and

apply at least the same security measures and degree of care to the Confidential Information as the Recipient applies to its own confidential information, which the Recipient warrants as providing adequate protection from unauthorised disclosure, copying or use;

The Recipient may only disclose the Disclosing Party's Confidential Information to those of its Representatives who need to know this Confidential Information for the Purpose, provided that:

at all times, it is responsible for these Representatives' compliance with the obligations set out in this Agreement.

Return of information

At the first request of the Disclosing Party, the Recipient shall:

destroy or return to the Disclosing Party all documents and materials (and any copies) containing, reflecting, incorporating, or based on the Disclosing Party's Confidential Information;

erase all the Disclosing Party's Confidential Information from its computer systems or which is stored in electronic form (to the extent possible); and

Reservation of rights and acknowledgement

Except as expressly stated in this Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information, or the accuracy or completeness of the Confidential Information.

The disclosure of Confidential Information by the Disclosing Party shall not form any offer by, or representation or warranty on the part of, the Disclosing Party to enter into any further agreement in relation to the Purpose.

The Recipient shall be liable to the Disclosing Party for the actions or omissions of the Recipient's Representatives in relation to the Confidential Information, as if they were the actions or omissions of the Recipient.

Warranty and indemnity

Each Disclosing Party warrants that it has the right to disclose its Confidential Information to the Recipient and to authorise the Recipient to use such Confidential Information for the Purpose.

Term and termination

This Agreement will be effective from the date the last Party signs this Agreement and will continue in effect for a period of ten (10) years.

Entire agreement and variation

This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.

No variation of this Agreement shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives).

No waiver

Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, and shall not preclude or restrict any further exercise of that or any other right or remedy.

No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.

Assignment

No partnership

Governing law and jurisdiction

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

The parties irrevocably agree to submit to the exclusive jurisdiction of the courts of Midden-Nederland, The Netherlands over any claim or matter arising under or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Document Metadata