NDA - Confidentiality agreement

between

VSHN AG (CHE-275.566.226)("VSHN"), Neugasse 10, 8005 Zurich, Switzerland

(hereinafter referred to as the "[CUSTOMER]")

and

[SUPPLIER/CUSTOMER NAME]
[SUPPLIER/CUSTOMER ADDRESS]

(hereinafter referred to as the "[SUPPLIER]")


Version of the document: Aug 2020

1. Preamble

The respective contracting parties intend to cooperate in the field of consulting & operation of IT services (the "Purpose"). Before entering into business relations, it is often necessary for the contracting parties to disclose sensitive information to each other. For the protection of the respective disclosing contracting party, such sensitive information shall be subject to general secrecy and confidentiality (duty of confidentiality). The present agreement also applies in the event that the intended business relationship is not concluded.

It is generally agreed that the other contracting party has developed its intellectual property at considerable business expense. There is therefore a mutual interest in protecting each other’s intellectual property and preventing third parties from gaining access to it.

The contracting party who entrusts sensitive information to the other party reserves the right to apply for its own industrial property rights regarding the subject matter of this confidential information.

The following agreement is made for this purpose:

2. Definitions

"Contracting Parties" are the parties to this confidentiality agreement.

"Confidential Information" means all information exchanged between the Parties:

  • information exchanged in writing, orally, electronically or in any other form, which is marked as secret or confidential or is identifiable as such. This includes, in particular, data, drawings, photographs, other illustrations, drafts, sketches, plans, descriptions, specifications, measurement results, calculations, experience, ideas, procedures, samples, knowledge and processes as well as other applications for industrial property rights, work results, sales figures, business and financial plans, customer data and prices that have not yet been published.

  • the existence of this agreement and its content.

3. Obligation of secrecy

The Contracting Parties have the following obligations with respect to the Confidential Information that has been provided to them in writing, orally or in any other way, directly or indirectly, for the Purpose described in the preamble or that has become known to them in any other way,

  • to keep it in confidence;

  • to use it solely for the above-mentioned Purpose, in particular not to publish it, to apply for industries property rights or to use it themselves;

  • neither to pass on to third parties nor to make it accessible in any other form;

  • to protect by all necessary precautions in such a way that access by third parties is avoided;

  • to make it available exclusively to employees who work in connection with the Purpose described in the preamble and who have also been bound to the above-mentioned confidentiality obligation. This shall apply also in the event that an employee leaves service during the term and continued validity of this agreement.

4. Exceptions from the obligation of secrecy

The secrecy obligations underlying this agreement do not apply to information that

  • was demonstrably known to the respective other Contracting Party before the notification;

  • were known to the public prior to the disclosure or were generally accessible to the public, or become so at a later date without breach of a confidentiality obligation;

  • the Contracting Party has demonstrably developed or had developed independently, irrespective of the knowledge of the confidential information; or

  • is handed over or made accessible to the Contracting Party by an authorised third party without breach of a confidentiality obligation.

The burden of proof for the exceptions mentioned in this section lies with the Contracting Party who invokes them.

5. No license

No rights are transferred to the [SUPPLIER] by this contract. In particular, ownership, licensing, reproduction, use or other industrial property rights or options remain with the Contracting Party who holds them at the time of conclusion of this agreement.

6. Term

This agreement comes into force upon signature by both Contracting Parties and is unlimited in time.

7. Handling / return of confidential information

Upon request, the Contracting Parties shall return all Confidential Information received and destroy any copies made. There is no right of retention.

8. Auxiliary persons

The Parties shall impose the obligations set out in this agreement on their employees and any other persons who have knowledge of the Confidential Information exchanged, and shall ensure that such obligations are fulfilled.

9. No guarantee

All Confidential Information is provided "as is" for use by the other Contracting Party at its own risk. The disclosing Contracting Party disclaims all warranties with respect to Confidential Information, including but not limited to warranties of timeliness, accuracy, completeness or fitness for a particular purpose.

10. Duty of care and compensation

The Contracting Parties undertake to handle the Confidential Information received with the care applied in their own affairs, but at least with the care that is customary in corresponding affairs, in order to protect it from unauthorised disclosure or use. The receiving Contracting Party acknowledges that financial damages may not be a sufficient remedy for a breach of confidentiality and that the disclosing party may seek the injunctive relief provided by law without waiving any other rights or remedies.

11. Formal requirements

No side agreements have been made. Amendments and supplements to this agreement must be made in writing and signed by both Contracting Parties. The same applies to the cancellation of the written form requirement.

12. Applicable law

This agreement shall be governed by the formal and substantive laws of Switzerland, excluding the conflict of laws rules of private international law. Both parties hereby submit to the exclusive jurisdiction of the court of 8000 Zurich, Switzerland.

13. Severability clause

Should any provision of this agreement be or become invalid or should this agreement contain a gap, this shall not affect the legal validity of the remaining provisions. In lieu of the invalid provision, a valid provision shall be deemed to have been agreed which comes as close as possible to the economic purpose intended by the Contracting Parties; the same shall apply in the event of a gap.