Confidentiality and non-solicitation agreement

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There are many situations where a business will require protection from both: (i) the disclosure of confidential information; and (ii) interference with its commercial relationships.

Author: Alasdair Taylor
Updated: 19 January 2023
Length: 7 pages (min.)
Notes: 9 pages (min.)
Format: MS Word (.DOCX)

This template is for a non-solicitation agreement containing confidentiality provisions, and comes in both unilateral and mutual versions.

The unilateral non-solicitation agreement protects only one of the parties. The mutual agreement binds both parties, helping to ensure that neither party threatens the other's business relationships, or discloses the other's confidential information.

This template allows the parties to tailor the non-solicitation restrictions, which may for instance prohibit soliciting a specified associate for employment, entering into a business contract or arrangement with the associate, or setting up a joint business venture with the associate. Both parties must agree to the restrictions and affirm that they are reasonable. The agreement sets time limits for restrictions on dealings with former associates, including the length of time the restrictions will remain effective after the termination of the agreement.

Confidentiality clauses are important legal tools created to protect sensitive information that may be disclosed in the course of a business arrangement.This agreement sets out the standard of care provisions that must be met to protect the confidential information. A requirement for written consent is set out when disclosure is deemed acceptable. The circumstances necessary for public disclosure are also addressed.

The agreement recognises intellectual property rights, but expressly excludes the transfer or license of these rights under the agreement.

In the unilateral template, a special "consideration" clause has been included to help ensure the basic requirements for an English law contract are met.

Note that the restraints of trade doctrine, and UK and EU competition law, may affect the enforceability of this type of agreement.

  1. Definitions
  2. Term
  3. Non-solicitation: restrictions on First Party (mutual version only)
  4. Non-solicitation: restrictions on Second Party
  5. First Party's confidentiality obligations (mutual version only)
  6. First Party's publicity obligations (mutual version only)
  7. Second Party's confidentiality obligations
  8. Second Party's publicity obligations
  9. Intellectual property rights
  10. Warranties
  11. Termination
  12. Effects of termination
  13. Notices
  14. General
  15. Interpretation

What standard of care must a recipient of confidential information meet under this agreement?

The confidentiality clauses in this document require a party that receives confidential information to protect it with the same degree of care as it uses to protect its own confidential information of a similar nature. To ensure that those who are negligent with their own information cannot take advantage of this formulation, recipients must in any event use a reasonable degree of care.

If I know about something before signing this agreement, and the other person then "discloses" that information to me under the protection of the confidentiality clause in this agreement, am I then bound by that clause?

The confidentiality clauses expressly exclude this kind of information from scope. If you hold important information that might be disclosed by the other party, you might want to check that you will be able to provide evidence that it was held before disclosure, just in case there is a dispute.

Can I use this document to place non-solicitation restrictions on my business partners in respect of my employees, contractors, suppliers and customers?

Yes, this is possible. The definition of "restricted associate" in the document, which is used to circumscribe the scope of the non-solicitation obligations, may cover customers, clients, licensors, licensees, principals, agents, consultants, contractors, suppliers, subsidiaries, parent companies, shareholders, directors, members, partners and employees - and indeed any other person with whom a party has had a material business relationship during the term of the agreement.

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A copy of this confidentiality and non-solicitation agreement is included in the following pack:

  • Business pack (only the mutual agreement included in the premium version of the pack)

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