This clause, known as the “ICC Confidentiality Clause 2016”, is intended to apply to any contract that incorporates it either expressly or by reference. While parties are encouraged to incorporate the Clause into their contracts by its full name, it is anticipated that any reference in a contract to the “ICC Confidentiality Clause” shall, in the absence of evidence to the contrary, be deemed to be a reference to this Clause.

1 “Agreement” means the contract incorporating this Clause.

Purpose means the purpose of the Agreement.

Disclosing Party means the Party disclosing Confidential Information to the Receiving Party.

Permitted Recipients means any director, officer, employee, adviser or auditor of the Receiving Party or any of its Related Companies who reasonably needs to know Confidential Information for the Purpose.

Receiving Party means the Party receiving Confidential Information from the Disclosing Party.

Related Company means any corporation, company or other entity that controls, or is controlled by, one Party or by another Related Company of that Party, where control means ownership or control, direct or indirect, of more than fifty (50) per cent of that corporation’s, company’s or other entity’s voting capital.

Confidential Information1 means any information or data, or both, communicated by or on behalf of the Disclosing Party to the Receiving Party, including, but not limited to, any kind of business, commercial or technical information and data in connection with the Purpose, except for such information that is demonstrably non-confidential in nature. The information shall be Confidential Information, irrespective of the medium in which that information or data is embedded, and whether the Confidential Information is disclosed orally, visually or otherwise.

Confidential Information shall include any copies or abstracts made of it as well as any products, apparatus, modules, samples, prototypes or parts that may contain or reveal the Confidential Information.

Confidential Information is limited to information disclosed on or after the date of signature of this Agreement.

2 The Receiving Party shall:
A. not disclose any Confidential Information to anyone except to the Permitted Recipients, who are bound to the same level of confidentiality obligations as set forth by this Clause;

B. use any Confidential Information exclusively for the Purpose; and

C. keep confidential and hold all Confidential Information with no less a degree of care as is used for the Receiving Party’s own confidential information and at least with reasonable care.

3 Any obligation to keep confidential all Confidential Information shall not apply to the extent that the Receiving Party can prove that any of that information:

A. was in the Receiving Party’s possession without an obligation of confidentiality prior to receipt from the Disclosing Party;
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B. is at the time of disclosure, or subsequently becomes, generally available to the public through no breach of this Agreement by the Receiving Party or any Permitted Recipient;

C. is lawfully obtained by the Receiving Party from a third party without an obligation of confidentiality, provided that third party is not, to the Receiving Party’s best knowledge, in breach of any obligation of confidentiality to the Disclosing Party relating to that information; or

D. is developed by the Receiving Party or its Related Companies independent of any Confidential Information.

4 Unless otherwise specified by the Disclosing Party at the time of disclosure, the Receiving Party may make copies of the Confidential Information to the extent necessary for the Purpose.

5 Nothing in this Agreement shall obligate either Party to disclose any information.
Each Party has the right to refuse to accept any information under this Agreement prior to any disclosure. Confidential Information disclosed despite an express prior refusal is not covered by the obligations under this Clause.

6 Nothing in this Agreement shall affect any rights the Disclosing Party may have in relation to the Confidential Information, neither shall this Agreement provide the Receiving Party with any right or licence under any patents, copyrights, trade secrets, or the like in relation to the Confidential Information, except for the use of Confidential Information in connection with the Purpose and in accordance with this Clause.

7 The Disclosing Party makes available the Confidential Information as is and does not warrant that any of this information that it discloses is complete, accurate, free from defects or third party rights, or useful for the Purpose or other purposes of the Receiving Party.

8 This Clause does not:
A. create any other relationship between the Parties;
B. oblige a Party to enter into any other contract; or c) require consideration for any information received.

9 In addition to any remedies under the applicable law,2 the Parties recognize that any breach or violation of any provision of this Clause may cause irreparable harm to the other Party, which money damages may not necessarily remedy. Therefore, upon any actual or impending violation of any provision of this Clause, either Party may obtain from any court of competent jurisdiction a preliminary, temporary or permanent injunction, restraining or enjoining such violation by the other Party or any entity or person acting in concert with that Party.

10 Within ninety (90) days of termination of this Agreement, the Disclosing Party may request the disposal of the Confidential Information. Disposal means execution of reasonable measures to return or destroy all copies including electronic data. Destruction shall be confirmed in writing. Disposal shall be effected within thirty (30) days of the request3 being made.
The provisions for disposal shall not apply to copies of electronically communicated Confidential Information made as a matter of routine information technology back-up and to Confidential Information or copies of it that must be stored by the Receiving Party or its advisers according to provisions of mandatory law, provided that this Confidential Information or copies of it shall be subject to continuing obligations of confidentiality under this Agreement; but no further use shall be permitted as from the date of the request.

11 Neither Party shall be in breach of this Clause to the extent that it can show that any disclosure of Confidential Information was made solely and to the extent necessary to comply with a statutory, judicial or other obligation of a mandatory nature, afterwards
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referred to as “Mandatory Obligation”. Where a disclosure is made for these reasons, the Party making the disclosure shall ensure that the recipient of the Confidential Information is made aware of and asked to respect its confidentiality. This disclosure shall in no way diminish the obligations of the parties under this Clause except to the extent that a Party is compelled by any Mandatory Obligation to disclose Confidential Information without restriction.
To the extent permitted by any Mandatory Obligation, the Receiving Party shall notify the other Party without delay in writing as soon as it becomes aware of an enquiry or any process of any description that is likely to require disclosure of the other Party’s Confidential Information in order to comply with any Mandatory Obligation.

12 Upon termination, the Receiving Party shall stop making use of the Confidential Information. The obligations of the Parties under this Agreement shall survive indefinitely or to the extent permitted by the applicable mandatory law.

1
Please be aware that the ICC Confidentiality Clause adopts the default option A for definition of Confidential Information from the ICC Model Confidentiality Agreement. The Parties may consider using the alternative option B: Confidential Information means any information or data, or both, communicated by or on behalf of the Disclosing Party to the Receiving Party, including, but not limited to, any kind of business, commercial or technical information and data disclosed between the Parties in connection with the Purpose provided that:
a) when disclosed in tangible form or via electronic communication it is marked or otherwise identified as Confidential by the Disclosing Party; or
b) when disclosed orally or visually it is identified as Confidential prior to disclosure and subsequently summarized in writing by the Disclosing Party and such summary is given to the Receiving Party marked or otherwise identified as Confidential within thirty (30) days after that disclosure. In case of disagreement relating to the summary, the Receiving Party must present its objections to the summary in writing within thirty (30) days of receipt.

2
The parties may also consider inserting a penalty or liquidated damages clause. Any clause of this type should be checked with local counsel to verify its validity and compliance with applicable laws and regulations.

3
In most cases it is not practical to return electronic communication. All copies of electronic data that with reasonable efforts can be expunged from storage, should be (this will involve more than removing the file from the File Allocation Table to ensure that the file is irretrievable). However, in some cases, as a matter of company policy, back-up copies are kept for disaster recovery purposes only and it would not be practical to identify the specific data and delete it. In such cases, deletion is not required.