Pre-Project Confidentiality Agreement

Businesses may exchange proprietary and sensitive information for many different reasons. It will often be the case that the party which has developed and owns that information will seek to keep it secret, allowing the recipient to use that information for limited purposes and prohibiting further disclosure.

This Pre-Project Confidentiality Agreement (also known as a Non-Disclosure Agreement) is designed for use in situations where one party is to engage in a project and a second party wishes to determine whether or not they wish to become involved in that project. The terms of this agreement allow the second party to examine and evaluate certain information pertaining to the project whilst imposing obligations of confidentiality and non-disclosure upon that party to ensure that knowledge of the project does not extend further than desired.

The project itself and the information to be provided should be described in detail in the schedules provided so as to ensure that both parties to the agreement know exactly what information is confidential and what it may be used for.

This document has been updated to allow for the storage of confidential information in the cloud. New optional provisions address the use of a “data storage provider” by the recipient of the confidential information but only with the agreement of the disclosing party. Other parts of the document have also been amended to work with this option, including the recipient’s obligations to return or erase the confidential information at the end of the agreement (allowing for situations in which it may not be possible for technical or legal reasons for the recipient to fully erase the confidential information) and the optional personal data sharing provisions. It is important to keep in mind that a disclosing party may resist the use of cloud storage by a recipient due to the necessary additional disclosure and the related reduction in control over the information. This will be a point of negotiation and professional legal advice may be necessary or desirable.

The terms of this agreement carefully regulate the recipient’s use of the confidential information and further ensure that the recipient obtains similar undertakings of confidentiality and non-disclosure from all relevant employees and third parties (e.g., sub-contractors) prior to the information being further disclosed.

The confidential information and the purposes for which it may be used should be described in the two schedules provided so as to ensure that both parties to the agreement know exactly what information is confidential and how that information may (and may not) be used. Storage of confidential information, permitted disclosure, mandatory disclosure (e.g., where required by law), and exceptions to confidentiality (e.g., where the information has entered the public domain through no fault of the recipient) are among the other key areas covered by this template.

Optional provisions cater for scenarios in which the confidential information includes personal data. This optional section is designed as a “controller to controller” data sharing clause. Note that this are designed for situations in which only a small amount of non-sensitive personal data is being shared between the parties. If a larger amount of personal data and/or higher risk personal data is involved, it may be preferable to use a dedicated data sharing agreement alongside the NDA. Note that if the recipient of the confidential information is storing it in the cloud using the services of a “data storage provider”, they will, in the data protection context, be appointing a processor and must ensure that an appropriate agreement is in place between them and the data storage provider. Note also that the data protection clauses as written do not allow for the transfer of personal data outside of the UK (or, optionally, the EEA). This will be an important factor to consider if the recipient wishes to store information in the cloud.

Optional phrases / clauses are enclosed in square brackets. These should be read carefully and selected so as to be compatible with one another. Unused options should be removed from the document.

This Pre-Project Confidentiality Agreement template contains the following clauses:

1. Definitions and Interpretation
2. Confidential Information
3. Receiving Party’s Confidentiality Obligations
4. Storage of Confidential Information
5. Permitted Disclosure
6. Mandatory Disclosure
7. [Disclosure of Personal Data – Personal Data Sharing]
8. Proprietary Rights
9. Exceptions to Non-Disclosure and Confidentiality
10. Term
11. Enforcement and Indemnity
12. No Further Obligation
13. No Partnership or Agency
14. Non-Assignment of Agreement
15. Entire Agreement
16. Variation
17. No Waiver
18. Severance
19. Communication
20. Third Party Rights
21. Law and Jurisdiction

and the following schedules:

1. The Confidential Information
2. The Project
3. [Personal Data Sharing]

This Non-Disclosure Agreement (Single Party Disclosure) is unlocked and in .doc format. Either enter the requisite details in the highlighted fields or adjust the wording to suit your purposes.

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