international, contractsCurrently my company implements a confidential contract with all clients for many reasons but primarily for the purpose of protecting both parties
(Including my company from disclosing my clients and my clients disclosing my company performs works for them as well as protecting the information shared between both parties)
The contract I use is a drafted by legal team and kept up to date with current laws in my country the process of implementation includes submitting the contract to client where then they have opportunity to seek independent advise and submit amendments this can go on a few times until all parties agree and sign.
It a great system and never a complaint about process or the contact itself. However, this contract stipulates that is only enforceable under the law of the country the contract was written (makes sense).
Now in a position of considering international clients I’m seeking if there is any experience on this board with regarding developing process of implementing a Confidential Contract between client and service provider internationally.
Or could a simple “terms of service” be enough, eg, to use the service you agree not to disclose you are using the service or publicly release information shared between parties in regards to the service provided. Etc
I’m thinking a terms of service might be enough only enforceable by cancelling service if terms are breached (rather than the investment of seeking legal for possible damages in case of breach)
Genuine interest in any experience in this area,
Just to extend further information regarding why such a company (service provider) would be in need of confidentiality is because the method of operations and how services are provided – not illegal nor immoral just quite unique and creative that is considered easily copied by competitors if aware. (The service is not a grand idea the method of delivery is) During the startup phase the company is only providing services to invited clients and their referrals to help get a kick start ahead of the rest, and looking for a few international clients in the bag so to speak before opening right up to the general public with a bit of self funding behind the scenes.
TL;DR: make the contract state your country's law applies in your court.
In theory you can put just about anything you want in an international contract.
In practice you should (not must, but definitely should) specify the law that shall apply and in which court. Which means those of your company's HQ more often than not -- but not always. Other options are the client's law and HQ, or a third-party law and court to "keep things neutral".
The clause is honored by courts except in very specific cases. If your counter-party sues in some other jurisdiction, the court will look into whether it's competent to take the case. In a nutshell:
If the contract states that this court is competent or states nothing, it takes the case.
If the contract states this courts law applies or states nothing, it applies its law.
If the contract states that only a specific court is competent, and that court is not it, then the court can throw the case out right then and there. Or in unusual cases ignore the clause and decide it's competent regardless and take the case.
If the contract states a law applies and it's not the one it's used to deal with, it can take the case while applying the law stated in the contract. (This sometimes occurs when a contract states Swiss law or some commonly used arbitration rules applies.) Or in unusual cases ignore the clause and decide its law applies instead.
Business to consumer is mostly the same unless the consumer's country has strong consumer laws. In France, for instance, individuals can take a US company to court, in France, applying French law, win the case, and see the ruling enforced across the Atlantic. Regardless of what the contract or the terms of use said. For instance, LICRA vs Yahoo!.
All content is licensed under CC BY-SA 3.0.