This agreement contains full and comprehensive agreement between the parties and replaces all agreements, promises, assurances and prior agreements, orally or in writing, concerning this project. Amendments, amendments or waivers to this Agreement are only valid if they are made in writing by the authorized representatives of the parties. This provision is considered to be a source of autonomous responsibility for the disclosure of confidential information, while liability is contractual. Article 721 of the Civil Code broadens the scope of protection for an aggrieved unit, since it also applies to breaches of the duty of confidentiality in a situation where the negotiated agreement has been concluded. A critical aspect of any negotiation for an investment in a business or the purchase of a business is an accurate audit of its activities and financial documentation by the buyer. Normally, this verification is carried out before a final agreement is signed or, even if a final agreement is executed, the applicability of the contract depends on the buyer`s satisfaction with the seller`s financial and operational documentation. These are usually client lists, formulas, operating reports, etc. In short, the seller opens his books and trade secrets to check through a buyer before the agreement is binding in most cases. Such disclosure to a party who may or may not actually purchase the transaction requires the protection of secrets if the agreement is not concluded and the contract below offers such protection. However, under Polish law, even if the parties do not conclude NOAs, they must continue to retain the information they will have access to during the negotiations, in accordance with Article 721, paragraph 1, of the BGB. Under this article, a party cannot disclose confidential information during negotiations: Polish law does not contain a general definition of confidential information, but Article 11, paragraph 4, of the Anti-Unfair Competition Act can be used for aid purposes. It introduces a definition of “corporate secrets,” including technical, technological or other information of economic value that is not made available to the public and for which a company has taken the necessary steps to preserve its confidentiality.

However, in practice, such an approach can be excessively narrow for the parties and agreements can introduce broader definitions. It is also recommended to define the scope of confidentiality obligations. In particular, it is recommended to determine to whom confidential information can be disclosed without violating an NOA. This applies to representatives and advisors of parties involved in transactions (i.e. the so-called representative clause). Such a clause will be particularly important when an NDA is concluded as part of due diligence. The scope of the parties` obligations must be such that the agreement protects a party or party from the disclosure of confidential information. The most important factor, therefore, is the broad definition of “confidential information,” including all background information for a given party, that is recorded in one form or another. The nature and scope of confidential information depends on the specificity of a given transaction. A clear definition of this scope should form the core of an NOA.