A Non-Disclosure Agreement German

Because of the immense liability risks associated with handling sensitive business information, anyone potentially involved in a corporate transaction – whether as a buyer or seller – should seek the advice of a lawyer before signing a transactional non-disclosure agreement. We generally suggest that specialized lawyers be involved in the development and, in particular, in the negotiation of the transactional confidentiality agreement. According to the new definition of trade secret in the Trade Secrets Protection Act, the legal protection of a company`s confidential business know-how now depends in particular on the existence of “appropriate confidentiality measures” (e.g. B contractual confidentiality obligations, non-disclosure agreements (NDAs) or technical access controls such as encryption). The burden of proof that appropriate confidentiality measures have been taken and that a trade secret therefore exists lies with the undertaking concerned. The Non-Disclosure Agreement (NDA) is a contract. It serves to protect confidential information. The Parties declare that they will treat and keep the information to be disclosed and made available as a result of their cooperation in a confidential manner. Since the exchange of internal and sensitive information is already possible when the contract is initiated, NDAs are often created and signed before a company negotiates a contract with its business partners. When a company works with a supplier, its own employees, investors, freelancers, and other companies or parties, sensitive information and trade secrets are often shared or disclosed. This exchange can already take place when two parties initiate a contract. However, it is essential for a company to keep information and be treated confidentially by a contractual partner.

Therefore, non-disclosure agreements (NDAs) are necessary to ensure the confidentiality of information that is not intended to be made available to the public. In the following article, we explain what non-disclosure agreements are, when and how they are used, what you need to know, and what sanctions to expect if a party violates a non-disclosure agreement. The information provided is of a general nature and should provide an initial overview. If you have any questions or need individual and personal legal advice, please contact the lawyers at Schlun & Elseven Rechtsanwälte. Our contract law practice group will be happy to advise and represent you. We explain your options under German contract law and support you in the implementation. If necessary, we will also represent you in court. This page gives you a basic overview of the purpose and necessity of non-disclosure agreements in contractual relationships. If you have any further questions, please contact our office. We will be happy to advise you. Our contract law practice team will inform you in detail and illustrate your possibilities.

There are two possible types of non-disclosure agreements, the bilateral agreement and the unilateral agreement. While the two-page non-disclosure agreement requires two parties to maintain secrecy, the unilateral non-disclosure agreement orders only one party to keep the information confidential. Whether the bilateral or unilateral agreement is more appropriate depends on your business plan. We will be happy to advise you in this regard. Please contact our law firm today via the online form below for more information about non-disclosure agreements in Germany. Let our contract lawyers monitor your non-disclosure agreements. In addition, training of employees regarding the proper handling of trade secrets may be required. In addition, companies should check whether they are sufficiently protected against so-called “reverse engineering”, which should be expressly prohibited by contractual agreements with employees and business partners. In the absence of a corresponding contractual provision, “reverse engineering” (i.e. the observation, examination, dismantling or testing of a product or object) is now expressly permitted (within the framework of the law against unfair competition and taking into account any intellectual property worthy of protection). A confidentiality clause in a contract or recourse to the contractual partner`s intention to maintain secrecy is often not sufficient to obtain adequate protection. In order to safeguard their rights, as well as to establish a breach of their obligations (in case of violation) and to assert claims, companies are advised to have a non-disclosure agreement signed.

Since a non-disclosure agreement is free of any contract, the parties are free to design it at will. Nevertheless, it is advisable to clearly define or define certain points. If a trade secret has been violated, this may be punishable by a criminal offence or a fine. Violation of the non-disclosure agreement may also give rise to a claim for damages. However, it is often difficult. In the event of a dispute, the claim should be enforced in court. It is therefore strongly advised to set a contractual penalty. The non-disclosure agreement specifies which information is to be treated confidentially. On the other hand, the agreement may specify which information is not covered. Such non-confidential information includes, but is not limited to, information already known and information disclosed as a result of a request or similar.

It should be noted that the definition of “confidential information” should not be too narrow, but also too broad. Otherwise, gaps in the contract could occur. Although confidentiality obligations are common clauses generally included in various commercial and transactional agreements (e.B. Stock purchase agreements, terms and conditions, terms of use of virtual services, employee agreements, etc.), actual non-disclosure agreements (NDAs) are most often found in a transaction context, especially in the context of a mergers and acquisitions process in which strategic or financial investors seek to acquire or sell businesses. First, non-disclosure agreements should specify which agreement is binding on the parties and why the parties need such an agreement. The latter means indicating the nature and scope of the cooperation. The agreement should also specify what information is considered confidential. In order to determine this more precisely, the information referred to may be specifically named. It is also advisable to mark as such information that should not be treated as confidential.

Finally, the duration of the contract and the contractual penalty can be determined. In addition, trade secrets must be protected in contracts with third parties such as customers, suppliers, licensees or R&D partners. Non-disclosure agreements often contain contractual penalties because it can be difficult to determine a certain amount of damages caused by the unlawful disclosure of a trade secret and because the sanction can have an additional deterrent effect. Given the new rules on reverse engineering, it may also be decided to include an explicit ban on reverse engineering in trade agreements. To resolve this dilemma and reassure all parties, i.e. .dem potential buyers and shareholders of the company, as well as the management of the target company itself, the first document to sign is usually a non-disclosure agreement (NDA). .