We are several partners involved in the preparation of a project proposal. For this purpose, we have signed a MoU/NDA. What happens if a new entity joins the partnership? Should we revise the MoU/NDA? Can we sign a separate MoU/NDA only with the new organisation and just inform the other parties? Alternatively, could bilateral MoU/NDAs between the main applicant and each individual partner be enough?
In case a new entity joins the partnership formed in relation to the project proposal, this entity cannot automatically become a party to the agreements already in place (NDA and/or MoU). Two options are possible to include this new partner as a party:
- The first option is to amend the whole agreement, which will in principle require the signature of all parties.
- An easier option could be the signature by the new partner and the coordinator of an accession form. The advantage of an accession form is that it does not require the signature of all partners all over again: the coordinator informs them all and signs the form if everyone agrees. This option is possible provided that the coordinator has a mandate to do so from the other partners.
We would however advise against the solution of concluding bilateral MoU/NDAs between the coordinator and each partner. Legally speaking indeed, there is a difference between having a global NDA/MoU between all partners (where each signatory is bound to respect the confidential information disclosed by everyone else, and protected against disclosures to anyone else), and having separate agreements only signed by the coordinator. While these seem easier to implement, they do not create the same contractual obligations amongst the parties. In that case, the various partners would be bound to confidentiality clauses only to the coordinator, not amongst themselves. They would not be directly liable to the other partners in case they breach their confidentiality obligations, and vice versa. This may make enforcement matters difficult; for this reason we would recommend sticking to a single agreement.