Non disclosure agreements (NDA)
Per quanto concerne i rapporti con i soggetti terzi occorrerà servirsi dei c.d. “ non disclosure agreements” o lettere di segretezza.
Tali lettere di segretezza hanno il vantaggio di poter essere usate ogni qual volta si abbia la necessità di avviare relazioni commerciali che prevedano, per l’appunto, la rivelazione di segreti industriali o di informazioni riservate.
Attraverso questi contratti è possibile, infatti, ottenere dalla propria controparte l’impegno alla non divulgazione o utilizzo di quanto da questa appreso in occasione delle trattative che precedono la conclusione di un contratto.
Tale tipo di impegno è utile, dunque, sia nel caso in cui ci si debba rivolgere ad un soggetto terzo per produrre un certo bene (si pensi al caso tipico di un contratto di subfornitura: il fornitore non può formulare la propria offerta ed il bene od una parte di esso non potrà essere prodotto senza conoscere dati che normalmente il potenziale acquirente non mette a disposizione di terzi) e sia nel caso in cui si intenda proporre ad altri un prodotto nuovo, ancora non brevettato o non brevettabile e che si voglia garantirsi che la propria controparte non se ne appropri in maniera illecita.
E’ bene precisare che in questa fase le parti non sono ancora legate da alcun contratto, e le sole obbligazioni che potrebbero richiedersi sono quelle generali di correttezza e buona fede nelle trattative, sempre che si giunga ad un contratto definitivo.
Nel caso in cui non si giungesse alla conclusione di un contratto, il titolare delle informazioni non solo non potrebbe azionare alcuna leva in sua difesa ma anzi si troverebbe nella spiacevole condizione di non avere nessun supporto probatorio che attesti tanto la titolarità delle informazioni quanto la loro rivelazione, con la conseguenza che il terzo potrà utilizzare liberamente i dati acquisiti nel corso delle trattative.
È evidente allora la necessità di tutelarsi adeguatamente, dotandosi di un impegno autonomo, non legato alla conclusione del contratto finale e che contenga un esplicito riferimento alla quantità e qualità dei dati rivelati.
E ciò è ancor più vero se si pensa ai contratti internazionali: senza un’esplicita previsione, ogni ordinamento coinvolto potrebbe infatti portare a conclusioni differenti quanto ad obblighi delle parti nel corso delle trattative, con il risultato di non poter essere sufficientemente tutelati.
Passando perciò agli aspetti più pratici della questione, vi sono dei requisiti “minimi” di contenuto da inserire nelle lettere di segretezza da cui non si può prescindere.
Tali requisiti sono:
- l’espressa menzione della titolarità delle informazioni che si intendono condividere col terzo;
- l’elenco e la definizione delle informazioni oggetto di trasmissione e di impegno alla non divulgazione;
- validità temporale dell’impegno;
- determinazione di una sanzione, nel caso di violazione dell’accordo;
- individuazione del giudice competente ed eventuale legge applicabile.
Per quanto concerne il secondo aspetto, e cioè l’elenco e la definizione delle informazioni, questo potrà essere analitico ( soluzione difficilmente attuabile nella pratica) o generico (ad esempio si potranno richiamare i dati per categoria), l’importante è che siano ben individuate le informazioni che si intendono trasmettere, di modo che poi, ove sorgesse un problema, non possano sorgere contestazioni al riguardo.
La concreta individuazione di quello che può considerarsi un’informazione confidenziale, e, dunque, non conosciuta, è, infatti, un problema di non poco conto, dal momento che le parti potrebbero avere opinioni opposte al riguardo: di qui l’importanza della predefinizione delle categorie di dati da considerarsi non divulgabili.
Sempre in tale ottica, si potrebbe inserire, per esempio, un elenco delle informazioni che si ritengono essere già note al settore di riferimento o, di converso, la precisazione che siano confidenziali le sole comunicazioni che recano una specifica menzione.
A titolo di esempio, si può riportare una clausola, per la quale:
“Confidential Information” means all information (whether marked “Confidential” or otherwise) in whatever media including, without prejudice to the generality of the foregoing, all renderings, sketches, drawings, data, know-how, formulae, processes, design, software programs, photographics and other materials relating to the dealings between the parties, the business affairs or products of the Disclosing Party, its customers, clients and business associates disclosed by the Disclosing Party from time to time.
È evidente che una clausola di questo tipo dovrà essere controbilanciata dalla espressa previsione dell’esclusione delle informazioni che non possono considerarsi per loro natura confidenziali, cioè quelle liberamente ottenibili.
Normalmente, l’impegno di confidenzialità si estende anche ai dipendenti o collaboratori della propria controparte, che dovrà garantire di adottare tutte le misure necessarie a tutelare il segreto.
Altro elemento di cui tener conto è la durata dell’accordo: è importante che il contratto preveda un limite temporale o una condizione di validità legata a particolari eventi, quale la sottoscrizione di un contratto definitivo ( che, necessariamente, conterrà un’autonoma clausola di riservatezza) o l’avvenuta obsolescenza dell’informazione.
Vi è la previsione di una sorta di penale, nel caso violazione dell’obbligo di riservatezza. E’ importante prevederla sempre. La propria controparte si sentirà più vincolata. La scelta tra un importo forfetario o una somma legata ai più disparati meccanismi (fatturato della controparte, somma per ogni violazione ecc.) saranno gli unici elementi da valutare caso per caso.
Altrettanto importante, da ultimo, è l’espressa determinazione specialmente nel caso dei contratti internazionali (ma non solo), del giudice competente a giudicare della corretta esecuzione dell’impegno: tale predeterminazione evita, infatti, ogni eventuale complicazione legata alla sua individuazione.
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