Negotiating a potential project proposal will most probably involve exchanging important information, which can result in the disclosure of your ideas, know-how, plans or techniques. Ensuring that confidentiality obligations are duly put into place will allow you to safely disclose know-how and information which, although not protectable by IP rights, brings a commercial/economic/strategic value to your organisation. Furthermore, putting confidentiality obligations in place will allow you to disclose potentially patentable information to your partners without ruining the novelty requirement at the basis of a patent application.
For this reason, it is always very much advisable for potential project partners to agree on appropriate non-disclosure and confidentiality obligations before the negotiations start, by signing a non-disclosure agreement (NDA). An NDA will set out procedures for the definition and handling of all confidential information during the negotiations. It will also allow you and your partners to define the purpose for which such information is shared and can be used, and will allow you to strictly regulate and/or prevent any further disclosure or use.
You may alternatively include confidentiality and non-disclosure obligations in a broader document, such as a memorandum of understanding (MoU), which is a document defining the framework of negotiations between partners.
Yes. The European Commission treats all proposals received as confidential, as well as any related information, data and documents received from each applicant. The whole process of handling and evaluating proposals is carried out in compliance with strict confidentiality rules, and proposals are archived under secure conditions at all times.
Similarly, external experts involved in the review of project proposals are also bound by confidentiality obligations. Evaluators, observers and other experts have to sign a contract with the European Commission, including a code of conduct which sets forth very strict confidentiality obligations.
We are several partners involved in the preparation of a project proposal. For this purpose, we have signed a MoU/NDA. What happens if a new entity joins the partnership? Should we revise the MoU/NDA? Can we sign a separate MoU/NDA only with the new organisation and just inform the other parties? Alternatively, could bilateral MoU/NDAs between the main applicant and each individual partner be enough?
In case a new entity joins the partnership formed in relation to the project proposal, this entity cannot automatically become a party to the agreements already in place (NDA and/or MoU). Two options are possible to include this new partner as a party:
- The first option is to amend the whole agreement, which will in principle require the signature of all parties.
- An easier option could be the signature by the new partner and the coordinator of an accession form. The advantage of an accession form is that it does not require the signature of all partners all over again: the coordinator informs them all and signs the form if everyone agrees. This option is possible provided that the coordinator has a mandate to do so from the other partners.
We would however advise against the solution of concluding bilateral MoU/NDAs between the coordinator and each partner. Legally speaking indeed, there is a difference between having a global NDA/MoU between all partners (where each signatory is bound to respect the confidential information disclosed by everyone else, and protected against disclosures to anyone else), and having separate agreements only signed by the coordinator. While these seem easier to implement, they do not create the same contractual obligations amongst the parties. In that case, the various partners would be bound to confidentiality clauses only to the coordinator, not amongst themselves. They would not be directly liable to the other partners in case they breach their confidentiality obligations, and vice versa. This may make enforcement matters difficult; for this reason we would recommend sticking to a single agreement.