Supply Chain Solutions No.24 – Mutual Confidentiality Agreement
When starting preliminary discussions with potential new suppliers or third party partners, it is highly recommended to have a confidentiality agreement in place to protect intellectual property or what may be considered information that you do not want competitors or business partners to know. This first step must be considered as a general course of action to protect Confidential Information.
Below is an example of a “Mutual Confidentiality Agreement”, that can be used to protect information as a precursor to signing terms and conditions and or a memorandum of understanding.
Mutual Confidentiality Agreement
This Mutual Confidentiality Agreement (“Agreement”) executed as of the date indicated below and effective as of _________, 20___, is between the entity indicated below (“Company” or “you”) and ID Global Concepts (“IDGC”, “We” or “Us”). Subject to the following terms, the parties wish to disclose to each other certain Confidential Information (as defined below) solely for the purpose of evaluation and use in connection with (a) the possible formation of a business relationship between parties and (b) any such resulting business relationship, including any arrangement for you to act as a service provider, consultant, developer or vendor for IDGC or its affiliates.
- Confidentiality. Each part (a “Recipient”) having access to the other party’s (the “Discloser”) Confidential Information agrees to treat all Confidential Information as confidential and proprietary to the Discloser, and take measures to protect the Confidential Information from unauthorised disclosure using the same degree of care as the Recipient takes to preserve its own confidential information (but in any event no less than a than a reasonable degree of care). Each Recipient agrees that it will use a Discloser’s Confidential Information only in connection with the purpose specified in this Agreement and not for any other purpose or for the benefit of itself or any third party. “Confidential Information” means any information that is confidential, proprietary or otherwise not generally available to the public this is disclosed to a Recipient or to which the Recipient has access in connection with this Agreement, including product data, strategies, inventions, customer data and technical, financial or business information in any form. The Confidential Information of each party includes the fact that the parties are in discussions regarding a potential business relationship, any details of their discussions and the status of the negotiations, and neither party shall issue any advertising or publicity involving the other party, except upon written agreement of both parties or as may be required by law (and then only upon prior notice).
- Confidentiality Legend. A Recipient shall have a duty to protect only that Confidential Information which is marked as confidential at the time of disclosure (if disclosed orally the Confidential Information must be orally identified as confidential at the time of disclosure and summarised in a written notice to the Recipient within 10 days of the disclosure); provided that any non-public data accessed from the party’s internal network or computer system shall be considered Confidential Information even if not marked.
- Representatives. Each Recipient agrees to limit access to the Confidential Information to its employees and permitted subcontractors with a legitimate need to know such information (“Representatives”). Each party agrees that its Representatives shall be informed of the confidentiality obligations and use restrictions in this Agreement and shall agree to protect the Confidential Information (in the case of Representatives that are not employees of the Recipient such agreement shall be in writing on terms substantially similar to those contained in this Agreement). Each party shall be responsible for any disclosure of Confidential Information, or any other breach of this Agreement, by any of its Representatives. A Recipient agrees to notify the Discloser immediately if it has reason to believe that any Confidential Information may be or may have been disclosed to any person other than Representatives and shall cooperate with Discloser in limiting and addressing such disclosure.
- Exclusions. The Agreement imposes no obligation upon a Recipient with respect to the Confidential Information that the Recipient can show (a) is generally available to the public through no wrongful act of the Recipient or its Representatives; (b) was in the Recipient’s possession prior to the time it was acquired from the Discloser; (c) is required to be disclosed by court order or operation of the law, provided the Recipient notifies the Discloser promptly in order to contest such disclosure and takes responsible steps to assist the Discloser in contesting such request; (d) is lawfully made available to the Recipient by a third party without breach of a confidentiality obligation, or (e) is independently developed by or for the Recipient without use of or reference to the Discloser’s Confidential Information.
- Term. The Agreement shall apply to all Confidential Information disclosed until either party notifies the other in writing that future communications shall not be confidential. Any such notifications shall not affect the confidential status of then-existing Confidential Information. A Recipient shall have a duty to protect Confidential Information for a period of (3) years from the date of the disclosure unless one of the exclusions in Section 4 applies or a different period in indicated in a separate written agreement between the parties. Upon completion or termination of the parties’ relationship, or at any time upon Discloser’s written request, each Recipient shall return to the Discloser all document or other materials in whatever form that contain Confidential Information, or destroy all copies and certify to the Discloser in writing that all copies have been destroyed.
- Effect of Disclosure. Neither the Agreement nor the disclosure of any Confidential Information to a Recipient shall be deemed to grant any express or implied license or rights in the Confidential Information of the Discloser. Each party represents and warrants that it has the rights to disclose to the other party any and all Confidential Information disclosed pursuant to this Agreement. Neither party shall be liable to any third party in respect of any Confidential Information or its use. Neither party is obligated to update any Confidential Information or to correct any inaccuracies in any Confidential Information. No provision of any Confidential Information, discussion or negotiations constitutes an offer by either party or on its behalf, or shall form the basis of any agreement or business relationship, except as expressly provided for in a definitive written agreement. Subject to the express obligation of this Agreement and any other written agreement between the parties, no party shall be precluded from independently developing technology or pursuing business opportunities similar to those covered by this Agreement.
- Enforcement. No failure or delay in exercising any right under this Agreement shall operate as a waiver thereof. In the event either of us waives any of its rights under this Agreement, such waiver shall not be considered a waiver of any other provisions or to constitute a waiver of future obligations. This Agreement inures to the benefit of and is binding on the parties hereto and their respective successors, assigns and heirs. If any part, term or provision of this Agreement is held illegal, unenforceable or in conflict with any applicable law, the validity of the remaining portion or portion shall not be affected thereby. The parties agree that any invalid provision shall be deemed to be restated so as to be enforceable to the maximum extent permissible under law consistent with the original intent of the invalid provision. This Agreement shall be governed by and construed in accordance with the laws of (State Legal Jurisdiction) without regard to the conflict of laws principles thereof. The parties agree that any litigation or claim relating to this Agreement shall be subject to the exclusive jurisdiction and venue, and the parties hereby submit to the personal ans exclusive jurisdiction and venue of those courts. Each Recipient agrees that the Discloser would be irreparably harmed by a breach of this agreement and that the Discloser shall be entitled to an injunction (both preliminary and permanent) from any court of competent jurisdiction, without posting bond or other security, enjoining and restricting the breach or threatened breach of this Agreement (in addition to such remedies as may be available to Discloser at law or in equity).
- Miscellanous. Nothing in this Agreement creates the relationship of principal and agent, employer and employee, partnership or joint venture between parties. The parties agree that they are and shall at all times remain independent and are not and shall not represent themselves to be the agent, employee, partner or joint venture of the other. Any notice required under this Agreement shall be in writing and sent to the address shown below or such other address given by a party from time to time. Notices shall be effective when received and shell be sent by facsimile, certified mail or by overnight courier. Signed facsimile copies and counterparts of this Agreement shall legally bind each of us to the same extent as original documents. All additions or modifications to this Agreement must be made in writing, with reference to this Agreement, and must be signed by all parties.
- ID Global Concepts (“IDGC”, “We” or “Us”) must be changed to your company name to become effective.
- Jurisdiction must be relevant to your companies incorporated territory or nominated by your lawyer.
- Your Lawyer must verify this document prior to use, that it is relevant to your territory jurisdiction.
- Both parties to this agreement must execute the agreement by authorised representatives and sign accordingly.
ID Global Concepts are experts in supply chain management. We add value to your supply chain through consultancy or management contract to ensure the business has the best practice systems that are the right fit for your business, customer and meet your value expectations.