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NON-DISCLOSURE AGREEMENT
This Non-Disclosure Agreement (the "Agreement") is entered into between:
and
Interested Party and Disclosing Party are also referred to collectively as the "Parties" and
each as a "Party".
Preamble
(A) The Parties wish to enter into discussion regarding a possible investment of the
Interested Party in the Disclosing Party ("Transaction").
(B) In this context the Disclosing Party will disclose (or respectively has already
disclosed) information about its business which may contain operational and
business secrets or other confidential information.
§ 1 Definitions
(1) "Confidential Information" within the meaning of this Agreement shall mean all
information about the Disclosing Party and/or its Representatives as well as their
respective businesses and affairs, in particular any trade secrets
(Geschäftsgeheimnisse) within the meaning of the German Trade Secrets
Protection Act (Geschäftsgeheimnisschutzgesetz - GeschGehG), which was or is
obtained either verbally or in writing or electronically or in any other form at any
time (before, on or after the signing of this Agreement and irrespective of who
provided such information and how such information was provided) by the
Interested Party and/or its Representatives,
(c) has been received by the Interested Party from a third party (who is not a
Representative), (x) who was entitled to disclose this information without
restriction and (y) who, in particular, did not obtain the information as a
result of a violation of statutory law or a contractual obligation vis-à-vis
the Disclosing Party or its Representatives and (z) who does not commit
such violation by disclosing the information.
(2) An "Affiliate" within the meaning of this Agreement shall mean an affiliate within
the meaning of §§ 15 et seqq. of the German Stock Corporation Act (AktG).
(3) "Representatives" of a Party within the meaning of this Agreement shall mean
such Party's Affiliates and the officers, employees, workers, authorized agents
and advisors (including – but not limited to – tax advisors, lawyers, accountants
and banks) of such Party and its Affiliates. A Representative which loses the
status as Representative during the term of this Agreement shall – irrespective of
it losing such status – continue to be a Representative within the meaning of this
Agreement.
(4) The term "Authorized Recipient" shall have the meaning as defined in § 4(2).
(5) "Financing Bank" within the meaning of this Agreement shall mean any provider
of third party financing in relation to the Transaction.
§ 2 Duty of Confidentiality
(1) The Interested Party shall ensure that Confidential Information is disclosed only to
Authorized Recipients.
(2) The Interested Party undertakes and shall ensure that all of its Representatives
who obtain Confidential Information,
(a) comply with the provisions of this Agreement, in as far as permitted
under applicable law;
(b) take appropriate confidentiality measures with respect to any trade
secrets (Geschäftsgeheimnisse) within the meaning of the German Trade
Secrets Protection Act (Geschäftsgeheimnisschutzgesetz - GeschGehG)
obtained as part of the Confidential Information;
(c) do not use any Confidential Information for purposes other than for the
discussions as described in the preamble and its evaluation of the
Transaction (in particular not for the purpose of competing with the
Disclosing Party or any of its Representatives);
(d) do not disclose any Confidential Information to Representatives or third
parties, with the exception of the disclosure in accordance with this
Agreement to such of its Authorized Recipients who require this
information in order to evaluate or carry out the Transaction;
(e) do not disclose vis-à-vis third parties that Confidential Information exists
or is or has been provided to the Interested Party or its Representatives
in whole or in part, that the Interested Party is considering the
Transaction or that negotiations regarding the Transactions are taking or
have taken place;
(f) do not provide any comments or other express or implied statements or
opinions concerning the Transaction, the Disclosing Party and its
DocuSign Envelope ID: 796FF008-5341-44B1-B18B-DDA7473B73F7
§ 3 Protective Measures
In order to ensure that the Confidential Information is kept confidential, the Interested
Party agrees
§ 5 Data Protection
(1) If the Interested Party is provided with Confidential Information that contains
personal data, it will only process this information to the extent necessary for the
purposes of this Agreement and in compliance with the provisions of the General
Data Protection Regulation (GDPR), the Federal Data Protection Act and other
data protection provisions (together the "Applicable Data Protection Law") and
will also protect personal data in accordance with Applicable Data Protection Law.
(2) If the Transaction does not take place, the Interested Party and its
Representatives must, at the Disclosing Party's choice delete, destroy in a manner
which is consistent with data protection requirements, or return all personal data
within the meaning of paragraph (1).
§ 6 Disclosure Requirements
In the event that the Interested Party or one of its Representatives is required by a
statutory obligation or a court order or official requirement by a state authority to disclose
the Disclosing Party's Confidential Information, the Interested Party shall
a) without undue delay, as far as legally permissible, notify the Disclosing Party by
e-mail of this obligation and on its request assist the Disclosing Party as far as
possible in protecting the Confidential Information or having it protected judicially;
and
b) disclose only such Confidential Information which must be disclosed by reason of
any legal requirements and use its best endeavours to ensure that the
Confidential Information disclosed is treated as far as possible in accordance with
this Agreement.
DocuSign Envelope ID: 796FF008-5341-44B1-B18B-DDA7473B73F7
§ 8 No Transfer of Rights
(1) All rights to the Confidential Information shall remain with the Disclosing Party.
(2) No provision in this Agreement shall be interpreted expressly or by implication as
the transfer of any rights or the grant of any licences in relation to the Confidential
Information.
§ 9 No Warranty or Guarantee
(1) The Disclosing Party does not warrant or guarantee that the Confidential
Information it has made available is complete or accurate or that the Confidential
Information may be used by the Interested Party or its Authorized
Representatives.
(2) Neither the conclusion of this Agreement nor the provision of Confidential
Information constitutes any obligation of the Disclosing Party or any of its
Representatives to provide the Interested Party or its Representatives with further
information or to update or correct any Confidential Information already obtained.
(3) Neither the conclusion of this Agreement nor the provision of Confidential
Information shall be interpreted as an offer of the Disclosing Party to execute the
Transaction.
§ 10 Non-solicitation
(1) The Interested Party shall ensure that its Representatives will not, for a period of
two years from the date of this Agreement, without the Disclosing Party's prior
written consent, either directly or indirectly, solicit for employment or entice away
from the Disclosing Party or any of its Affiliates any officer, manager or employee,
whether or not that person knows any of the Confidential Information or would
commit a breach of his/her contract of employment by reason of his/her leaving
his/her current employment.
(2) The foregoing non-solicitation provision shall not apply in case the Interested
Party or one of its Representatives hires any such person who has not been
employed by Disclosing Party or any of their Affiliates during the preceding six
months or any such person who is hired as a result of such person responding to
a bona fide general advertisement for employment.
DocuSign Envelope ID: 796FF008-5341-44B1-B18B-DDA7473B73F7
(3) The enforcement of claims already arisen at the expiration of this Agreement, in
particular of claims for indemnification or damages, is not limited by the expiration
of this Agreement. These claims shall become time-barred in accordance with
statutory provisions.
§ 14 Miscellaneous
(1) The Parties agree that the burden of proof in regard to the presence of an
exception from the confidentiality obligation under this Agreement shall be borne
by the Interested Party.
(2) Each Party shall fulfil its obligations under this Agreement free of charge and
without any claim to reimbursement of costs.
(3) This Agreement constitutes a contract for the benefit of third parties pursuant to
section 328 of the German Civil Code (BGB) by which rights are granted to the
benefit of the Disclosing Party's Representatives. The Disclosing Party shall have
the right to unilaterally reduce or terminate such aforementioned rights of the
third party beneficiaries without the approval of the affected third party
beneficiary or the Interested Party being required.
(4) The Interested Party is entitled to a set-off only with undisputed counterclaims or
counterclaims which have been confirmed by a final decision of a competent
court.
(5) The transfer of this Agreement or the rights or obligations thereunder require the
prior written consent of the respective other Parties.
(6) This Agreement contains all agreements between the Parties regarding the
treatment of Confidential Information.
(7) The fact that this Agreement is drafted in English does not mean that the laws,
doctrine or case law of any English speaking jurisdiction apply to the
interpretation of this Agreement.
(8) Amendments and/or additions to this Agreement shall be valid only if made in
writing and signed by all Parties. This also applies to any amendment to this
written form clause.
§ 16 Severability Clause
(1) Should individual provisions of this Agreement be or become invalid or ineffective
in whole or in part this shall not affect the validity of the other provisions. The
Parties undertake to agree in the required form a valid and effective provision in
lieu of the invalid or ineffective provision which most closely reflects the legal and
economic intent of such provision.
DocuSign Envelope ID: 796FF008-5341-44B1-B18B-DDA7473B73F7
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