It is important to formulate this clause very clearly to avoid confusion, as the date of conclusion of the contract and the date of performance of the contract can sometimes be different depending on the mutual understanding of the parties. It should also be noted that the above remedies, with the exception of the injunction, are remedial remedies and not of a preventive nature. To avoid such problems and risks, the information provider must always have well-designed non-disclosure agreements, up-to-date technology using a firewall, antivirus software, and anti-spyware. Computers and devices must be encrypted. In accordance with this clause, the parties must provide the names of third parties who will use this confidential information to fulfill the specific purpose, and they are also bound by this Agreement. This clause sets out the reason for the disclosure of this information and obliges them to protect this confidential information. The Kerala State Government stated in its defence that the situation needed to be urgently monitored and prosecuted due to the increase in the number of cases and that the Kerala mission was not fully equipped to handle such extensive data. It therefore entered into this agreement with Sprinklr. which has adequate infrastructure to track COVID-19 data, which will provide information to the Kerala State Disaster Management Executive Committee and the Kerala Epidemic Diseases Ordinance 2020[vi]. In this emergency, the state has signed a standard form of treaty that gives New York, USA, exclusive jurisdiction. Since the data is stored in India, the Indian courts can take action in case of violation, but if there is a violation of the terms of the agreement, the New York court will have to deal with the dispute. He also said that the state government would exercise due diligence in data protection and that this was also guaranteed under the agreement. The Information Technology Department supported the state, saying that the protection systems are deployed in the Amazon cloud and no one can even violate Sprinklr Inc.
Sometimes, even after the development of a perfect agreement and mutual understanding between the parties, the dispute can arise at any time during the execution of the transaction. It is necessary to decide in advance on an alternative dispute resolution method, rather than going directly to the court, even the court would first suggest to the parties to choose alternative dispute resolution as a court case if the court deems it appropriate. Alternative dispute resolution is convenient for most people because it saves a lot of time, settles immediately and inexpensively, and establishes a simple procedure established by the parties. In the NDA, this clause is mutually agreed between the parties to resolve any dispute raised by an alternative dispute resolution mechanism rather than by the tribunal`s lengthy process. As a general rule, parties prefer arbitration to resolve their disputes rather than other alternative dispute resolution mechanisms. These agreements are usually broad. For example: Both parties try to understand this provision very clearly in order to avoid accidental disclosure. The Disclosing Party will endeavor to retain this provision as much as possible so that the receiving Party does not have the opportunity to find a loophole and use it against the Disclosing Party. In addition, the receiving party must try to understand what information should be kept confidential. This provision must be formulated with great care and clarity. This provision includes, in accordance with the disclosing party`s wishes, to keep it as secret as possible.
[vi] Referred from „Lokmath english” to „Contract Terms, NDA, Ensure Covid 19 Data Security – kerala HC”, author of ANI. Published on 01-09-2020. english.lokmat. com /national/contract-terms-non-disclosure-agreement-ensure-covid-19-data-security-kerala-govt-tells-hc-on-deal/#:~:text=State%20government%20has%20filed%20its,and %20 p r ivacy%20of%20the%20citizens. This is another exclusive clause for the disclosing party(ies). If the receiving party violates any of the terms/conditions of the NDA Agreement. As mentioned above, the consequences for the disclosing party are irreparable. To protect the rights of the party, this clause is indispensable. However, financial assistance is not enough to harm the party.
Therefore, injunction and compensation are remedies available to the party. This is an exterminatory clause that is mutually agreed between the parties in the NDA, so that the injured party is aware of the consequences. In accordance with the agreed clause, the non-infringing party may apply to the court for an injunction prohibiting the receiving party from disclosing such confidential information. Also seek compensation for all costs, expenses and damages incurred as a result of losses suffered by the other party, including court, litigation and attorneys` fees. In such circumstances, it is important to assess the remedies available to the information provider for breach of confidentiality by the recipient of that information, including intermediaries. Remedies can be divided into two parts, namely civil remedies and criminal remedies. On the 24th. April 2020 issued a preliminary injunction, stating that the primary purpose of adopting a preliminary injunction is to ensure that there is no data outbreak during this pandemic period. The court went on to say that data protection is extremely important and ensures that it does not fall under illegal and unauthorised access and disclosure. Therefore, by issuing an interim injunction preventing Sprinklr from directly or indirectly violating confidential information from data entrusted by the state, and also ordering the state government that[vii]: Not to enter an NDA until confidential information has been disclosed to an entity or individual, the court will have the right to seek protection and remedy, is legally confiscated.
As mentioned earlier, for the management of a company, its confidential information plays a major role, and if it is passed on to an unauthorized person, it causes irreparable damage to the company and the law could not help in this situation. Therefore, it is always important to enter into an NDA agreement before the main business activities take place. The best first step is to take precautions, that is, by filling out a confidentiality agreement, you can primarily enter the confidential information from the disclosure. As I said, it`s always better to take precautions than to apologize. Finally, a party who violates a confidentiality agreement can be prosecuted under several provisions of the Indian Penal Code of 1860. .