Exclusive jurisdiction implies that the parties do not want any court or law other than what is stated in the NDA to be involved. Other jurisdictions that are not mentioned in the agreement are more likely to accept jurisdiction where there is exclusive jurisdiction mentioned in the agreement. However, it should be noted that some courts, such as the Supreme Court of India of Swastik Gases Private Limited, have ruled against Indian Oil Corporation Limited that, while the parties have explicitly mentioned a jurisdiction in their agreement, the court does not require the words “exclusive” and “only” to establish that other jurisdictions are being ousted. In the case of a unilateral NDA (for which the agreement is primarily in favor of a party that will advertise), jurisdiction and choice of law are normally determined by the disclosed party. Another common provision in confidentiality agreements is a non-fidelity clause. This type of clause generally states that a buyer cannot rely on the completeness or accuracy of the information provided by the seller during due diligence and that there is no sales contract between the buyer and the seller unless the parties enter into a final agreement. What happens if a seller is not completely with a buyer during due diligence? Does the buyer have a recourse? The Delaware Confidentiality Agreement is a legal contract that requires one (1) or two (2) parties to prevent confidential information from being in the hands of a third party (3rd) or a competing company. For the purposes of business confidentiality, an employer may require a worker to sign this agreement when hired. If a party breaches the contract, this document can be used as evidence in court and the plaintiff has the right to claim damages for misappropriation of their confidential information. What can be defined as confidential information has been described in the Treaty and in the Statutes of the State of Delaware (below). In the absence of an explicit provision, the courts will seek a relationship or connection between the parties and the agreement in order to determine the jurisdiction and choice of law that will be applicable.
For example, in the United States, counterfeits fall under the exclusive jurisdiction of federal courts and not domestic law. A court that is not explicitly mentioned in the NDA should verify whether it has jurisdiction in the matter by checking whether it has a connection with the parties or the agreement in question. The RAA case serves as a reminder that while due diligence is an instrument to help buyers evaluate a potential transaction, buyers should not rely on statements or materials provided by a seller during due diligence. Many confidentiality agreements preserve the seller`s ability to limit its liability in terms of quantity, quality and date of disclosure during the due diligence process, perhaps even in the event that the seller makes fraudulent or misleading statements. Knowing which side of the fence you will likely be on and what kind of agreement you want to have will help you think about which court system will be effective and more conducive to the results you want to achieve. . . .