Confidentiality Agreement/NDA: one way – long

When do I use this document?

• if you are a regular supplier of services to business clients or customers
• and/or where both the supplier and client/customer are based in the UK
• if you want a contract prepared more for the benefit of the supplier than the client/customer

What are the key features?

• cover sheet and Appendix to be completed with details of supplier, customer, services, commencement date, fees and other additional terms
• Schedule of contract terms, with 23 paragraphs over 10 pages
• provisions relating to commencement date and duration, supplier’s service obligations, customer’s obligations and fees and payment
• exclusions and limitations on supplier’s liability
• force majeure and termination clauses
• restriction on customer soliciting supplier’s staff involved in the provision of the services

What else do I need to know?

A business which provides services to business clients on a regular basis may wish to do so on the basis of a standalone supply contract rather than using standard Terms and Conditions.

What terms are implied in contracts for the provision of services?

Unlike a contract for the sale of goods, relatively few terms are implied in a contract for the supply of services.

The principal applicable statute is the Supply of Goods and Services Act 1982 (“SGSA”).  This implies the following terms in a B2B contract for the supply of services:

• reasonable care and skill: that the supplier will carry out the services with reasonable care and skill
• time for performance: if the contract is not fixed by the contract, left to be fixed in a manner agreed by the contract or determined by the course of dealing between the parties, that the supplier will carry out the service within a reasonable time
• consideration: if the price for the services is not fixed by the contract, left to be fixed in a manner agreed by the contract or determined by the course of dealing between the parties, that the customer will pay a reasonable charge for the services

Can the SGSA implied terms be excluded or restricted?

Yes, under the SGSA and subject to the Unfair Contract Terms Act 1977 (“UCTA”), the terms implied by the SGSA can be excluded or varied by the contract itself, by the course of dealing between the parties or by usage.

In practical terms, the only implied term which is likely to be relevant is the implied term to use reasonable skill and care – the subject matter of the other implied terms is likely to be covered by the express terms of the contract.

Often, a supplier’s own form of contract will in any event expressly state that the services will provided with reasonable skill and care.

Exclusion clauses

Generally, exclusion clauses and liability limitation clauses in contracts for the supply of services are subject to the requirements of UCTA and are discussed in more details in

• Supply of Goods and Services