Intellectual Property Enterprise Court

Case Nos: IP-2023-000039 and IP-2023-000132 - [2024] EWHC 2889 (IPEC)

Fecha: 15-Nov-2024

The NDA

The NDA

30.

I here set out the recitals and some of the clauses of the NDA. I have added numbers to indented subclauses in clauses 2 and 3 for ease of reference:

‘Mutual Confidential and Non Disclosure Agreement

This Mutual Confidential and Non Disclosure Agreement (“Agreement”) is made and entered into, as of 22^nd August 2017, by and between

Shenzhen Kaiyan Medical Co. Ltd … hereinafter referred to as Kaiyan

AND

I-SMART Marketing Services … (hereinafter referred to as “I-SMART”)

Hereafter collective referred to as “Parties” and individually as “Party”

RECITALS

A/ The Kaiyan conceives [healthcare and related products] (the “Products”)

…

C/ The Healthcare division of Kaiyan wishes to hold discussions with I-SMART in order to explore the opportunity to enter into subsequent business activities regarding its new electro medical devices treating psoriasis and others;

D/ During the course of such discussions for the Business Purpose [not defined], Kaiyan may disclose to I-SMART certain proprietary information and data relating to its Products and its Project and I-SMART may disclose to Kaiyan certain proprietary and confidential information relating to Light Therapy for treatment of several indications (“Confidential Information” as further defined below):

NOW, THEREFORE, the parties agree as follows:

Definitions

“Affiliate” of a party shall mean [definition set out] …
“Discloser” means the Party disclosing information to the other Party and such other Party will be referred to as the “Recipient”
“Confidential Information” shall mean: [definition set out] …

Recipient hereby agrees to each of the following as it pertains to the Confidential Information received pursuant to this Agreement:

to hold the Confidential Information in strict confidence;

to use the Confidential Information only for the Business Purpose;

not to disclose the Confidential Information to any third party except (i) in accordance with article 4 hereof, or (ii) as authorized by the Discloser in writing;

not to copy or reproduce the documents or media that embody the Confidential Information, unless necessary for proper assessment thereof or for the purposes of article 7 hereof;

not to apply for or claim any intellectual property right based on the Confidential Information; and

not to disclose the existence, the content and the purpose of this agreement to a third party.

Confidential and restriction of use obligations as contained herein shall not apply for such information that the Recipient can demonstrate through appropriate written evidence :-

now or hereafter becomes generally known or available to the public through no act or omission on the part of Recipient;

was rightfully acquired from a third party who did not obtain it directly or indirectly from Discloser or one of its Affiliates;

was in Recipient’s lawful possession at the time of disclosure by Discloser and which was not acquired directly or indirectly from Discloser or one of its Affiliates;

was developed independently by Recipient without use of or reference to the Confidential Information provided by Discloser pursuant to this Agreement;

…

Recipient may disclose the Confidential Information only to those of its employees and Affiliates who need to know the same but only to the extent necessary to evaluate the Business Purpose and only if such employees and Affiliates are advised of the confidential nature of such Confidential Information and the terms of this Agreement and are obligated to protect the confidentiality of such Confidential Information.

…

12)

All rights and obligations under this Agreement shall come in force as of its Effective Date and remain in full force for a period of 3 years.’