dated [The moment when a person receives content from twofold that is con-fidential, and this is mentioned.]
between
twofold (Schweiz) AG, Thurgauerstrasse 54, 8050 Zürich
(twofold)
and
Any person who receives marked confidential information agrees to the fol-lowing contract. (the receiver)
(Twofold and the receiver, the Parties)
Affiliates: with respect to any Party, any person or entity that directly or indi-rectly controls, is controlled by, or is under common control with such Party.
Confidential Information: any proprietary and/or non-public information which is furnished or disclosed by Twofold, directly or indirectly, to the receiver or any of its Affiliates or any of its and their Representatives, in whatever form and on whatever format, whether set forth orally, in writing or otherwise, and de-clared to be or physically marked as confidential, or which the receiver may reasonably assume is to be treated confidentially. Confidential Information includes this NDA and the existence of the business relationship between the Parties. Confidential Information includes any information generated on the basis of Confidential Information.
Personal Data: as defined in the Federal Act on Data Protection (SR 235.1).
2.1 Principle.
The receiver shall at all times hold in strict confidence all of the Confidential Information from the date of initial disclosure until 10 years after the date on which this NDA expires or is terminated for whatever reason.
2.2 Standard of Care.
The receiver shall treat Confidential Information as company secrets entrusted to it with at least the same care it reserves for its own proprietary information of equal importance and in any event reasonable standard of care for confi-dential information.
2.3 Permitted Use and Disclosure.
The receiver shall not use or disclose the Confidential Information for any pur-pose other than the negotiation of the terms of its business relationship with Twofold and performance of its contractual obligations towards Twofold, and shall not disclose the Confidential Information to any third party other than on a strictly need-to-know basis to those of its Representatives who are necessary to the performance of the negotiation of the terms of its business relationship with Twofold and performance of its contractual obligations towards Twofold and who sign an agreement conforming to the terms of this NDA prior to dis-closure of any Confidential Information.
3.1 Exceptions.
The duties of confidentiality under this NDA shall apply unless the receiver proves that the Confidential Information:
3.1.1 was already in the public domain or becomes publicly available through no breach of this NDA by the receiver or its Representatives;
3.1.2 was rightfully in the possession of the receiver without any obligation of confidentiality prior to the time of disclosure;
3.1.3 was made available to the receiver by a third party entitled to make such disclosure without any obligation to maintain confidentiality; or
3.1.4 is approved for disclosure in writing by Twofold, prior to such disclo-sure, said written approval to be given at Twofold’s sole discretion.
3.2 Duty to Disclose.
If the receiver becomes obliged to disclose Confidential Information by law or by an official or court order, it shall immediately inform Twofold in writing and afford it a reasonable opportunity to counter such disclosure and take action to obtain a protective court order or other appropriate measures. the receiver shall in any case only disclose Confidential Information to the extent required to be disclosed in order to comply, and shall exercise all reasonable efforts to ensure that any information so disclosed will be accorded confidential treat-ment, whether or not a protective order or other similar order is obtained by Twofold. Confidential Information that is disclosed pursuant to this section 3.2 shall remain Confidential Information for all other purposes.
4.1 Compliance.
Where Confidential Information includes Personal Data, the receiver shall at all times comply with its obligations under the Federal Act on Data Protection (SR 235.1) and any other applicable data protection laws and regulations, including by implementing appropriate technical and organisational measures to ensure a level of security appropriate to the risk.
4.2 Data Processor.
Further, where the receiver is engaged to process Personal Data as a data processor on behalf of Twofold, the receiver shall (i) only process such Per-sonal Data in accordance with the documented instructions of Twofold; (ii) implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk; (iii) engage sub-processors only with the prior written authorization of Twofold and under the condition that the receiv-er imposes obligations of confidentiality and data protection no less strict than those set forth in this NDA upon such sub-processors; (iv) make available to Twofold all information necessary to demonstrate compliance with the obliga-tions of data protection laws and regulations applicable to Twofold and/or the receiver; and (v) cooperate with Twofold in ensuring compliance with such laws and regulations. The provisions of any data processing agreement that the Parties may enter or may have entered into are expressly reserved.
The receiver acknowledges that certain Confidential Information may be sub-ject to professional secrecy under article 321 of the Criminal Code (cf. Appen-dix). Therefore, the unauthorized disclosure of such Confidential Information constitutes a criminal offence that is punishable with imprisonment of up to 3 years or a monetary penalty. In his / her capacity as auxiliary of Twofold, the receiver respectively its Representatives are criminally liable for breach of professional secrecy.
6.1 Title.
All rights and title in and to Confidential Information shall, as between the Par-ties, remain with Twofold. Nothing in this NDA shall be deemed or construed as granting the receiver the right to make, use or sell for any purpose any product or other item based on, incorporating or derived from Confidential Information, or to otherwise sell, use or exploit such Confidential Information except as expressly provided by this NDA.
6.2 No License.
The Parties recognize and agree that nothing contained in this NDA shall be construed as granting any property rights, by license or otherwise, over the Confidential Information, or over any existing or future patent, copyright, trademark, trade secret, invention or any other intellectual property right of Twofold. Unless otherwise provided herein, the Parties shall have no obligation to grant each other any licenses to use the intellectual property or copyrights regarding the disclosed Confidential Information.
7.1 Indemnification.
The receiver shall indemnify Twofold on demand against any and all losses, damages, liabilities and costs incurred by Twofold as a result of the breach of this NDA by the receiver or its Representatives.
7.2 Injunctive Relief.
The receiver acknowledges that a breach of this NDA may cause irreparable harm to Twofold, for which financial compensation may not be an adequate remedy. In the event of actual or threatened breach of this NDA, Twofold shall be entitled to seek specific performance and injunctive relief from any court of competent jurisdiction in addition to all other remedies available at law or in equity.
8.1 Beginning and Term.
This NDA shall become effective as of [date] and shall apply retroactively to any Confidential Information which may have been disclosed in connection with discussions and/or negotiations relating to the business relationship be-tween the Parties prior to such time. This NDA shall remain in force for a period of 5 years after return or destruction of any Confidential Information to Two-fold, as confirmed in writing by the receiver.
8.2 Return or Destruction.
Upon Twofold’s request or at latest upon termination of the underlying busi-ness relationship between the Parties, the receiver shall promptly destroy or return to Twofold, at the election of Twofold in its sole discretion, all Confiden-tial Information, including any copies, notes, extracts, or derivative materials, immediately upon request and shall provide written confirmation thereof.
9.1 This NDA does not constitute any obligations on the Parties to enter into a cooperation and/or business relationship. The nature and extent of the Confidential Information to be disclosed shall at all times remain at the sole discretion of Twofold.
10.1 Amendment.
This NDA may be modified only by a written instrument duly executed by each Party.
10.2 Construction and Hierarchy.
The provisions of this NDA shall not be affected by the provisions of any sepa-rate agreements related to the business relationship between the Parties. In case of any conflict between the provisions of this NDA and those of any such other agreements, the more protective provisions shall prevail.
10.3 Severability.
If any provision of this NDA is held to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the Parties to the fullest extent possible. In any event, all other provisions of this NDA shall remain valid and enforceable to the fullest extent possible.
10.4 No Waiver.
The failure of Twofold to enforce any of the provisions of this NDA or any rights with respect thereto shall in no way be considered as a waiver of such provi-sions or rights or in any way affect the validity of this NDA. The waiver of any breach of this NDA by Twofold shall not operate to be construed as a waiver of any other prior or subsequent breach.
10.5 Binding on Successors.
All of the terms, provisions and conditions of this NDA shall be binding upon to the benefit of the Parties and their respective successors, permitted assigns and legal representatives.
10.6 Assignment.
The receiver may not assign or transfer, in whole or in part, or delegate all or any portion of its respective rights or obligations under this NDA without the prior written consent of Twofold. Any assignment, transfer or delegation made without such consent shall be null and void. Twofold shall be entitled to assign and transfer its rights and obligations under this NDA to any of its Affiliates by providing written notice thereof to the receiver.
11.1 Governing Law.
This NDA shall be governed by and construed in accordance with Swiss sub-stantive law, without reference to its conflict of laws provisions.
11.2 Jurisdiction.
Without prejudice to Section 7.2, the competent courts at Zurich shall have exclusive jurisdiction.
The Parties have signed this NDA on the date first written above.
This document was automatically digitally signed by clicking «accept».
Appendix – Excerpt from the Swiss Criminal Code of 21 December 1937
(SR 311.0; Status as of 1 January 2019)
Art. 321 – Breach of professional secrecy
1. Any person who in his capacity as a member of the clergy, lawyer, de-fence lawyer, notary, patent attorney, auditor subject to a duty of confidentiali-ty under the Code of Obligations, doctor, dentist, chiropractor, pharmacist, midwife, psychologist or as an auxiliary to any of the foregoing persons dis-closes confidential information that has been confided to him in his profes-sional capacity or which has come to his knowledge in the practice of his pro-fession is liable on complaint to a custodial sentence not exceeding three years or to a monetary penalty.
A student who discloses confidential information that has come to his knowledge in the course of his studies is also liable to the foregoing penalties. A breach of professional confidentiality remains an offence following the ter-mination of professional employment or of the studies.
2. The person disclosing the information is not liable to any penalty if he does so with the consent of the person to whom the information pertains or on the basis of written authorisation issued in response to his application by a superior authority or supervisory authority.
3. The federal and cantonal provisions on the duties to report and coop-erate, the duty to testify and on the obligation to provide information to an au-thority are reserved.