Can I do software engineering in NDA?

Confidentiality Agreement
(or confidentiality agreement) (sample)

Confidentiality Agreement

 

 

to the new development / technical idea / invention

 

.....................................................................................................................

 

.....................................................................................................................

- hereinafter referred to as "development" -

 

 

between the inventor

 

.....................................................................................................................

 

.....................................................................................................................

- hereinafter referred to as the "inventor" -

 

 

and the company interested in a license or purchase

 

.....................................................................................................................

 

.....................................................................................................................

- hereinafter referred to as "interested party" -

 

(hereinafter both parties also referred to as "party" or "parties")

 

§ 1

 

  1. The parties intend to enter into a contract (e.g. know-how contract, sales contract, license agreement, etc.) on cooperation in the following area / in connection with [detailed project description] (hereinafter "purpose")
    .............................................................................................................
    Note: The purpose should be described here why the confidential information is passed on to the interested party so that, in combination with the description in § 2 (see there), in the event of a dispute it can be proven which information is protected by this confidentiality agreement.

    in which the development / technical idea / invention is to be used.

 

  1. The inventor intends to provide the interested party with confidential information in accordance with Section 2 below for the purpose described above. The interested party is aware that this confidential information has not yet been known in its entirety or in its details or is readily accessible, is therefore of economic value and is protected by the inventor through appropriate confidentiality measures. If confidential information according to this confidentiality agreement (hereinafter "Agreement") does not meet the requirements of a trade secret within the meaning of the Trade Secrets Act, this information is nevertheless subject to the confidentiality obligations according to this agreement.

 

*) Please note the user information!

With regard to this, the parties undertake to keep secret the secret knowledge and information about development / technical idea / invention that has been communicated to one another, in particular in connection with new developments, demonstrations, experiments and discussions. You take all necessary measures to prevent third parties from gaining knowledge of it and using it. Employees and salaried employees are to be obliged to maintain confidentiality, unless they are already required to do so under their employment contract.

 

 

§ 2

 

(1) Confidential information within the meaning of this agreement is all information (whether in writing, electronically, verbally, digitally embodied or in any other form) that is provided by the inventor to the interested party or to a person connected to the interested party within the meaning of §§ 15 ff Company for the aforementioned purpose. In particular, the following are considered to be confidential information:
 

  1. Trade secrets, products, manufacturing processes, know-how, inventions, business relationships, business strategies, business plans, financial planning, human resources, digitally embodied information (data);
     
  2. Any documents and information of the inventor that are the subject of technical and organizational confidentiality measures and are marked as confidential or are to be regarded as confidential due to the type of information or the circumstances of the transmission;
     
  3. the existence of this agreement and its content.

 

A detailed description of the project and the confidential information is attached to this agreement.

 

(2) Information that is not confidential

 

  1. which were known to the public or generally accessible prior to the notification or transfer by the inventor or which will become so at a later point in time without breaching any confidentiality obligation;
     
  2. which were verifiably known to the interested party before disclosure by the inventor and without breach of a confidentiality obligation;
     
  3. obtained by the interested party without using or referring to confidential information from the inventor himself; or
     
  4. which are handed over or made accessible to the interested party by an authorized third party without violating a duty of confidentiality.

 

§ 3

 

(1) The interested party undertakes to

 

  1. not to use the mutually communicated information without the express written consent of the inventor;
     
  2. to treat the Confidential Information as strictly confidential and only use it in connection with the purpose;
     
  3. to disclose the Confidential Information only to those agents who rely on knowledge of this information for the purpose, provided that the interested party ensures that their agents comply with this Agreement as if they were themselves bound by this Agreement;
     

(2) to also secure the confidential information against unauthorized access by third parties through appropriate secrecy measures and to comply with the legal and contractual provisions on data protection when processing the confidential information. This also includes technical security measures adapted to the current state of the art (Art. 32 GDPR) and the obligation of employees to confidentiality and compliance with data protection (Art. 28 Para. 3 lit. b GDPR); The inventor reserves the sole and unrestricted right to apply for property rights.

 

 

§ 4

 

  1. The parties will return documents that they have received from the other in connection with the development etc. to the respective information provider immediately after they become known, termination of the declaration of intent in accordance with § 1 sentence 1 or termination of the cooperation agreement.

    Note: If the confidential information also contains personal data, it should be ensured that, due to the provisions of the GDPR, in particular Art. 17, deviating regulations for deletion are indicated.

 

  1. At the request of the inventor and without a request at the latest after achieving the purpose described in the preamble, the interested party is obliged to return or destroy all confidential information including copies thereof within ten (10) working days after receipt of the request or after the end of the project ( including electronically stored confidential information), unless otherwise agreed with the inventor or statutory retention requirements.
     
  2. The destruction of electronically stored confidential information takes place through the complete and irrevocable deletion of the files or irretrievable destruction of the data carrier. Complete and irrevocable deletion of electronically stored confidential information means that the confidential information is deleted in such a way that any access to this information is impossible, using special deletion procedures (e.g. by means of "wiping") that meet recognized standards (e.g. standards of the Federal Office for Information Security).
     
  3. Exceptions to this are - in addition to confidential information, with regard to which there is an obligation to retain within the meaning of Paragraph 2 - confidential information whose destruction or return is technically not possible, e.g. B. because they were saved in a backup file due to an automated electronic backup system for securing electronic data; this also includes the technically necessary storage of master data (e.g. personnel or customer numbers), which is necessary to establish a link to the archived information.
     
  4. At the request of the inventor, the interested party must ensure in writing that he has completely and irrevocably deleted all confidential information in accordance with the provisions of the preceding paragraphs and the instructions of the inventor.
     

 

§ 5

 

  1. Irrespective of the rights that he has under the Trade Secrets Act, the inventor has all rights of ownership, use and exploitation of confidential information. The inventor reserves the exclusive right to apply for property rights. The interested party does not acquire ownership or - with the exception of use for the purpose described above - other rights of use to the confidential information (in particular to know-how, patents registered or granted, copyrights or other property rights) on the basis of this agreement or otherwise due to implied conduct.

 

  1. The interested party must refrain from exploiting or imitating the confidential information in any way outside of the intended purpose (in particular by means of so-called "reverse engineering") or having it exploited or imitated by third parties and, in particular, industrial property rights on the confidential information - in particular to register trademarks, designs, patents or utility models.

 

 

§ 6

 

Irrespective of a possible claim for damages, the interested party undertakes to pay a contractual penalty in the amount of EURO ..................... for each case of culpable violation of this agreement.

 

 

§ 7

 

This agreement comes into force after it is signed and ends… .. years after the end of the exchange of information for the aforementioned purpose. This confidentiality obligation also applies if the intended cooperation agreement (Section 1 (1)) does not come about or has ended, unless the development is now evident, for which the interested party bears the burden of proof.

 

 

§ 8

 

  1. German law is to be applied to the contract.
     
  2. The court at the seat of the inventor is locally responsible for disputes arising from this contract, provided that the interested party is a businessman.

    Annotation:
    At this point, an arbitration agreement and / or arbitration agreement can be made upon request. To agree on an arbitration clause and / or an arbitration clause - see explanation below!

 

 

§ 9

 

  1. This agreement represents the entire agreement made between the parties and replaces all previous agreements for the above-mentioned purpose. Verbal collateral agreements do not exist. Changes and additions to this agreement as well as terminations must be made in writing, although electronic written form is not sufficient. This also applies to a change or cancellation of this clause.
     
  2. Should one or more provisions of this contract be or become legally ineffective, this shall not affect the validity of the remaining provisions. The parties undertake to replace the ineffective provision with a provision that comes as close as possible to the intended economic purpose.

 

 

..............................................         .............................................................

Place, date, signature

 

 

..............................................         .............................................................

Place, date, signature

 

 

 

attachment

 

[Detailed description of the project and confidential information]Remarks

 

to 1:

 

It is just as important to document these confidentiality measures accordingly, because according to the Trade Secrets Act, a trade secret is only present if appropriate confidentiality measures have been taken. This can be, for example, technical protective measures such as the identification of documents, the grading of information according to certain "confidentiality levels" or a consistent data classification, introduction of a corresponding document management system, possibly coupled with DLP systems, etc. It is also advisable to check the confidentiality clauses or competition agreements in employment contracts and, if necessary, provide for specific confidentiality obligations. In addition, it seems advisable to include a ban on reverse engineering in the employment contracts as well - within the legally possible limits.

 

 

to § 6:

 

The contracting parties can freely negotiate the amount of the contractual penalty.

 

In contracts (GTC) that are used as forms, it must be taken into account that the courts could object to a contractual penalty and consider it null and void that exceeds "economically reasonable limits". A contractual penalty agreed in the General Terms and Conditions must be in a reasonable proportion to the wages that the client earns through his performance, also taking into account its pressure and compensation function. (The BGH considers a contractual penalty in the construction sector that exceeds 5% of the contract value to be null and void).

 

 

to § 8:

 

Model for an arbitration clause:

In the event of disagreements, the contracting parties undertake to carry out an arbitration procedure with the aim of working out a fair agreement based on interests by means of mediation with the support of a neutral arbitrator, taking into account the economic, legal, personal and social circumstances. All disputes arising in connection with this contract or its validity will be resolved before the courts are brought in, in accordance with the arbitration rules of the institution of the Chamber of Industry and Commerce ............... (e.g. . XXXXX = name of the nearest Chamber of Industry and Commerce with arbitration board) arbitrated.

 

In addition to the arbitration clause, the following arbitration clause could also be agreed:

 

It would also be possible to agree only one arbitration clause.

If an arbitration clause is agreed, § 16 sentence 2 must be deleted.

 

Important:  

If a non-trader is involved, the arbitration clause must be signed in a separate agreement.

 

 

Sample for an arbitration clause:

All disputes that arise in connection with this contract or its validity will be finally decided in accordance with the arbitration rules of the Chamber of Commerce and Industry ............. to the exclusion of ordinary legal recourse. However, the judicial dunning procedure remains permissible.