Another issue to consider at the beginning of international cooperation is whether an exclusivity or lockout agreement is essential to the transaction. An exclusivity agreement is intended to ensure that the other party does not mess with other parties that may have an impact on the transaction. Whether an exclusivity agreement can be negotiated depends on the bargaining power of the shares in the transaction. If one of the universities has the strongest negotiating position, it should try to ensure that the other party signs an exclusive agreement, as this provides additional security. An exclusivity agreement requires careful development in order to be legally binding. If, for example, an agreement not to negotiate with others should be binding if its terms are sufficiently clear, it is unlikely that a negotiated agreement will bind the parties. The solution for breach of an exclusivity agreement is probably a prejudice to the wasted costs and not a loss of profits due to the fact that the joint venture does not intervene. Therefore, if a party violates an exclusive agreement, it is unlikely that the likely awarding of a contract to the victim is significant In international cooperation between two higher education providers, it is advisable that the parties negotiate a confidentiality agreement before engaging in formal discussions. Again, one wonders what the weight of a confidentiality agreement is, given that it can be difficult to implement, but experience shows that a confidentiality agreement can help to focus the minds of the parties on the implementation of adequate procedures for protecting confidential information that is disclosed to each other during the due diligence process.
In addition to preventing the disclosure of confidential information by the other party, the agreement should also aim to establish minimum standards to ensure the security of the information. It may also attempt to prevent one of the two institutions from publicly discussing cooperation or from discussing it without the agreement of the other party. Finally, some confidentiality agreements are used to reduce the possibility for one of the poaching parts of the other`s key personnel. If a lengthy due diligence process is initiated, both institutions could obtain information on key collaborators of the other institution. The confidentiality agreement can be used to ensure that one party does not offer employment to the other person`s key personnel. Such an agreement cannot be used to prevent the relocation of staff themselves (it would be both a trade restriction and a denial of the principles of academic freedom), while the parties can prevent each other from actively addressing those staff. A joint declaration of intent is a document that outlines the parties` general understanding of the essential elements that will be put to the vote at a later date. A confidentiality agreement ensures that neither party can disclose confidential information about the proposed cooperation without the consent of the other party.