Confidentiality Agreement Review

2024-09-12 13:12 UTC gpt-4o Open in ChatGPT ↗

Anything unusual here:

Confidentiality Agreement

Cloudfactory BV, established at Concertgebouwplein 9, Amsterdam 1071 LL, The Netherlands (“Cloudfactory”) and
Uncharted Limbo Collective, whose registered office is at The Gossamer City Project Unit 63, London E2 9FN, United Kingdom, (“Recipient”) BACKGROUND: A. Cloudfactory is a company that creates big ideas and marketing and advertising in it’s broadest sense, and develops business ideas, products, solutions and execution / production. B. Cloudfactory to work with Recipient on a live and digital experience for an undisclosed client (the “Project”); C. Pertaining thereto, Cloudfactory will disclose to the Recipient proprietary and confidential know-how, data, instructions and other information relating to the Project; D. Recipient recognizes the proprietary and confidential nature of the know-how, data, instructions and other information disclosed by Cloudfactory to the Recipient or arising from the Project (“Information”): IT IS HEREWITH AGREED that the disclosure of the Information by Cloudfactory is subject to the following terms and conditions: Clause 1 - Confidentiality In respect of the Information disclosed by Cloudfactory to the Recipient, the Recipient agrees and undertakes: a. to keep the Information strictly confidential and secret and not in any way or at any time to make use thereof except for the Project nor to disclose the same to any person except responsible and qualified employees to whom it shall be necessary to disclose the Information for the Project; b. to refrain from using the Information for the marketing or communication of any product other than the product of Cloudfactory’s client; c. to obtain from all persons to whom the Information is disclosed written undertakings to maintain the strict secrecy thereof and to apply their best efforts to enforce such undertakings; d. at no time to derive directly or indirectly from the possession or use of the Information any right, title or interest therein nor to claim any legal rights by means of any intellectual property rights or applications thereto (e.g. patents) with regard to processes derived from or based on the Information; e. without prejudice to their obligations pursuant to the present Agreement, to return to Cloudfactory, immediately upon request, all documents containing the Information or any part thereof including all copies and extracts made thereof (in digital or any other form) and thereafter not to exploit or use the Information for any purpose whatsoever. Recipient acknowledges that it may disclose the Information only to its contractors, subcontractors, agents, or similar persons and entities, upon prior written consent of Cloudfactory. In the event Cloudfactory gives such consent, Recipient warrants that any of its contractors, subcontractors, agents or such other similar persons and entities to which information is disclosed, will be bound and will abide by the terms of this confidentiality agreement. CLOUDFACTORY BV / CONCERTGEBOUWPLEIN 9 / 1071 LL / AMSTERDAM, NETHERLANDS / +31 (0)20 845 4268 Clause 2 - Exceptions The above provision does not apply to Information which: a. at the time of disclosure is in the public domain; b. after disclosure is published or otherwise becomes part of the public domain through no fault or action of the Recipient; c. the Recipient can establish by competent proof was in its possession at the time of disclosure by Cloudfactory and was not acquired, directly or indirectly, from Cloudfactory; d. is received by the Recipient after the time of disclosure by Cloudfactory from a third party who did not acquire such Information from Cloudfactory. Clause 3 – Confidentiality on Identity of Parties and proprietary items Recipient shall not make any announcements to third parties, in particular to the consumer and trade press, about the Agency’s clients, or the activities undertaken or to be undertaken by the Agency for its clients, unless prior written consent has been obtained from Agency. Recipient shall not use any of the client’s proprietary items, such as trade secrets, market reports, trademarks, the client’s name or any materials produced for clients of Cloudfactory, for any other purpose than authorized in the applicable agreement between Cloudfactory and its client. In particular, Recipient shall not use such proprietary items in order to promote his/her own business without prior written consent from Cloudfactory. In case of doubt, Recipient will consult with Cloudfactory. Clause 4 – No further agreements or license Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter into any further agreements concerning the Information or as a grant of license by Cloudfactory to the Recipient to use the Information other than for the Project. Clause 5 – Recipient proprietary materials, licenses and releases Recipient shall not include any pre-existing materials or third party materials in Project Materials without the advance written consent of Cloudfactory. In the event such consent is granted by Cloudfactory, Recipient shall identify to Cloudfactory in writing, any such pre-existing materials or third party materials prior to utilization thereof by Recipient. To the extent any such pre-existing or third party materials are incorporated into Project Materials, Recipient hereby grants Cloudfactory a non-exclusive, sub-licensable, perpetual, irrevocable, worldwide, fully-paid, royalty-free license to use, reproduce, distribute, display and perform (whether publicly or otherwise), transmit, prepare derivative works of and otherwise modify, make, import, export and otherwise use and exploit (and have others exercise such rights on behalf of Cloudfactory) such pre-existing and third party materials (in whole or in part) in connection with Cloudfactory’s use and exploitation of the Project Materials. Notwithstanding anything herein to the contrary, Recipient shall not incorporate any third party materials into the Project Materials without Cloudfactory’s advance written consent and unless it has first obtained all consents, releases and licenses necessary to enable Cloudfactory and its client to freely exploit the Project Materials in their respective sole discretion. Clause 6 – No liability for inaccuracy Cloudfactory or any of its affiliates or representatives: a. does not make any representations or warranties, express or implied as to the accuracy or completeness of the Information; b. shall not have any liability to the Recipient arising out of, or in connection with the use by of the Information. Clause 7 – Duration of Agreement The terms and conditions of this Agreement shall remain in full force and effect for a period of 1 (one) year from the date hereof. The confidentiality stipulations of this Confidentiality Agreement will remain valid at all times. CLOUDFACTORY BV / CONCERTGEBOUWPLEIN 9 / 1071 LL / AMSTERDAM, NETHERLANDS / +31 (0)20 845 4268 Clause 8 – Applicable laws, forum This Agreement shall be governed by and construed in accordance with the laws of The Netherlands and the parties agree to submit any conflicts to the jurisdiction of the competent courts of Amsterdam. Executed in duplicate in Amsterdam, 12 September 2024. Cloudfactory BV Recipient

By: Sandeep Chawla By: Chris Waters Title: Managing Director Title: Co-Founder Date: 12 September 2024 Date: 12 September 2024 Location: Amsterdam Location: London CLOUDFACTORY BV / CONCERTGEBOUWPLEIN 9 / 1071 LL / AMSTERDAM, NETHERLANDS / +31 (0)20 845 4268

The Confidentiality Agreement you provided appears to be standard in many respects, but there are a few elements worth noting:

Non-Specific Identification of the Client (Clause B): The client for the project is described as “undisclosed,” which is fairly common, but depending on the context, it may be helpful to ensure that both parties have a clear understanding of who this client is. The recipient may want to clarify this if there’s any uncertainty.
Licensing of Pre-existing Materials (Clause 5): If the recipient incorporates pre-existing or third-party materials into the project, they are granting a broad, perpetual license to Cloudfactory to use these materials. This is an extensive rights grant, and the recipient might want to review this closely if they have any proprietary or third-party content involved, especially if there are restrictions or limitations on those materials.
Limited Liability for Information Accuracy (Clause 6): Cloudfactory disclaims liability for the accuracy or completeness of the information provided. This means that if the project depends on this information being accurate, the recipient bears the risk. The recipient may want to ensure they have mechanisms in place to verify any critical data before acting on it.
Duration of Agreement vs. Confidentiality (Clause 7): The overall agreement is set to last one year, but the confidentiality obligations remain valid “at all times.” This is an open-ended confidentiality clause, which could obligate the recipient indefinitely. It is not uncommon, but worth noting, particularly if the information could lose its relevance over time.
Jurisdiction (Clause 8): The agreement is governed by the laws of The Netherlands, and any disputes will be handled in Amsterdam courts. This could be a point of concern for the recipient if they are not based in or familiar with Dutch law, as this may create additional legal costs or complications.

Other than these points, the agreement seems like a fairly typical NDA (Non-Disclosure Agreement), with clauses ensuring that confidential information is protected, limited use of materials, and a clear understanding of liability and licensing. The recipient should ensure they are comfortable with the broad scope of the obligations and rights provided under the terms, particularly regarding intellectual property and jurisdiction.