Confidentiality Agreements & NDAs PDF

**[28/11/2024]** Confidentiality Agreements and NDA's -- contract that establishes the obligation for both parties to keep the information that they have shared, confident - These can be signed before the main contract is settled, or can also be applies after the entry into force of the main...

**[28/11/2024]** Confidentiality Agreements and NDA's -- contract that establishes the obligation for both parties to keep the information that they have shared, confident - These can be signed before the main contract is settled, or can also be applies after the entry into force of the main contract - This is usually because it is delicate/sensitive information or trade secrets - Basic problem of this sort of contract is the liability to be established against the party in breach of the promise of confidentiality -- it is often very difficult to produce evidence on who was responsible for the leak of information - This contract will be subject first of all to the law that the parties chose as per article 3 Rome 1 Regulation What happens if there is no agreement as to the law which governs the contract? - If it was a contract of sale, we would go to article 4, para 1, letter a -- habitual residence of the seller - But this is not a sale of good, it is an NDA Agency agreements - Specific EU law regulations -- 83/00 - Agency contract = contract whereby one of the parties, namely the agent, which is an **independent party**, is not a worker of the principle with his or her own resources. They act as an **intermediary** in business operations or transactions in order to negotiate or conclude such transactions on behalf of the principal - Therefore assumes no liability because actin on behalf of someone else - Agent is not the party from a contractual perspective, but acts on behalf of the principal... this rases legal issues: What if agent say to client they were not acting on behalf of principle at certain times? Need to know what law governs this Article 1, paragraph 2, letter g of Rome 1 regulation excludes -- question whether an agent is able to bind a principle in relation to a third party Therefore deciding the governing law is a question for national law -- Rome 1 gives us no tools to establish this E.g imagine that the principal, I am the principal and I am located here in Spain and I commercialize some types of cars and I\'m selling them in Minnesota. And I have an agent there who is acting on my behalf to enter into purchase agreements with US clients, okay? Does the agent, does my agent need to previously buy my cars to sell them to my US clients? - No, if the agent buys my products, we don't have an agency contract but just a sale of goods, the agent would then be a buyer, that is not what happens this contractual relationship Very general terms and obligations of the agent - To promote sales - Act in good faith -- i.e avoid competition against the principal - Follow reasonable instructions - Keeping information confidential Contracts can be established against these notions -- freedom of the parties Obligations of the principle - Have to pay the agreed remuneration - Deliver the necessary documents concerning the transactions the agent will conduct - Duty of help i.e must provide information concerning the characteristics of the products, guarantees of the products etc - If agreed, the principles has the freedom to refuse sales entered into by an agent **[4/12/2024]** Article 3 paragraph(para) 5 -- shown in this case, nuances established in the general freedom -- in order to indefinity lex contractus the first thing you need to check is whether the parties have selected a specific legal system as the one governing the contract - But this para establishes nuances concerning mandatory rules -- namely those that cannot be derogated from by agreement, despite the lex contractus - This is in cases where every relevant part of the contract points towards a legal system other than the one selected by the parties as the lex contractus [Ingerman case] Para 21 of judgement -- assess' the purpose of article 17 -- reparation to commercial agent and its reasoning -- the court here says its mandatory to compensate them but how much is discretion of MS (calculation method) Under art 19 -- parties may not derogate from these articles at the detriment of the agent -- from this provision the court derives the mandatory nature of compensation scheme Para 23 says -- EU law makers wanted these laws within common market to be unfirom Para 24 -- court highlights freedom of establishment and undistorted competition as the treaty objective Para 25 says therefore it must be followed and cannot be derogated from by a choice of law clause, this is the summary of legal philosophy of the court -- contained in para 5 of article 3 these days -- agency services provided within the EU territory, therefore existence of the compensation right for the agent This decision was extremely controversial -- economic consequences are extremely serious, both parties freely reached a contract whereby compensation right was expressly excluded which is perfectly normal in other jurisdictions, and in spite of this -- court ruled unexpectedly, mandatory nature to the extent to displace choice in contracts [Distribution and franchise agreement ] - In case of distribution agreement -- distributor usually an independent company equipped with economic material human resources - What happens if no agreement on distribution contract concerning lex contractus -- what law should rule that agreement? Article 4 f Rome 1 Regulation -- habitual residence of the distributor (art 3 and 4 are most important rome 1 regulations) - Para 2-4 establishes nuances in this rule In franchise agreement - We have a contract where one of the parties grants the other party a right to offer to the public certain products or services using the business and technical know-how distinctive signs and other protected rights owned by the franchisor - Franchisee must usually pay a fee in favour of the franchisor which usually will be calculated according to the earnings gained through the exportation of thew franchised business -- some mandatory rules under Spanish law, there is a register royal degree 201/2010, once terminated they have no right to operate under trademarks or other signs corresponding to the franchisor - Issue because products cannot be sold if agreement terminated -- shows added value of IP rights -- important to agree in contracts what happens with stock in these kind of contracts - What happens with law applicable to these contracts? Same rationale as we have been discussing -- if Rome 1 regulation applicable then we can resort to general principles freedom of choice -- in absence of this -- law of habitual residence of the franchisee as per article above