Mutual Non-Disclosure Agreement
This Mutual Non-Disclosure Agreement (the "Agreement") is made as of [Effective date] (the "Effective Date") between [First party (you or your company)], with an address at [First party address for notices], and [Second party (the other company)], with an address at [Second party address for notices]. Each is a "Party" and together they are the "Parties". Each Party may disclose confidential information to the other for the following purpose: [Purpose of the disclosures] (the "Purpose"). A Party disclosing information is the "Disclosing Party" and a Party receiving it is the "Receiving Party". In consideration of the mutual promises below, the Parties agree as follows.
1. Confidential Information
"Confidential Information" means all non-public information disclosed by or on behalf of the Disclosing Party to the Receiving Party, before or after the Effective Date, in connection with the Purpose, whether in writing, orally, visually, by demonstration, or by giving access to premises, systems or data, that is marked or identified as confidential at the time of disclosure or that a reasonable person would understand to be confidential given its nature and the circumstances of disclosure. Confidential Information includes business plans, financial information, pricing, customer and supplier lists, product roadmaps, designs, source code, algorithms, data, know-how, trade secrets, personnel information, and the fact that the Parties are discussing the Purpose and the terms of any proposed transaction.
Oral or visual disclosures are Confidential Information if identified as confidential when made or summarized in writing within thirty (30) days afterward, but the absence of a summary does not remove protection from information that is obviously confidential.
2. Exclusions
Confidential Information does not include information that the Receiving Party can demonstrate by written records: (a) was publicly available at the time of disclosure, or later became publicly available through no breach of this Agreement; (b) was rightfully known to the Receiving Party without restriction before it was disclosed by the Disclosing Party; (c) was rightfully received by the Receiving Party from a third party who was not under a duty of confidentiality with respect to it; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. A combination of features is not within these exclusions merely because individual features are, unless the combination itself is publicly known.
3. Obligations of the Receiving Party
The Receiving Party shall: (a) use the Disclosing Party’s Confidential Information solely for the Purpose; (b) not disclose it to anyone other than its own and its affiliates’ employees, officers, directors, contractors, attorneys, accountants and financial advisers (its "Representatives") who need to know it for the Purpose and who are bound by written confidentiality obligations at least as protective as this Agreement; (c) protect it with at least the degree of care it uses to protect its own confidential information of a similar nature, and never less than reasonable care; and (d) not reverse engineer, decompile or disassemble any prototype, software, sample or other object that embodies Confidential Information.
The Receiving Party is responsible for any breach of this Agreement by its Representatives as if it had committed the breach itself. The Receiving Party shall notify the Disclosing Party promptly upon learning of any unauthorized use or disclosure of Confidential Information and shall cooperate reasonably to regain possession and prevent further unauthorized use.
4. Compelled Disclosure
If the Receiving Party is required by law, regulation, subpoena, court order or the rules of a securities exchange to disclose any Confidential Information, it shall, to the extent legally permitted, give the Disclosing Party prompt written notice so that the Disclosing Party may seek a protective order or other remedy, shall cooperate reasonably in that effort at the Disclosing Party’s expense, and shall disclose only the portion of the Confidential Information that its counsel advises is legally required. Information disclosed under this Section remains Confidential Information for all other purposes.
5. Term and Survival
This Agreement governs disclosures made during the [Term of the agreement (years)] year period beginning on the Effective Date, unless earlier terminated by either Party on thirty (30) days’ written notice to the other. The Receiving Party’s obligations with respect to Confidential Information disclosed during that period continue for [Confidentiality period after the term ends (years)] years after this Agreement ends. Notwithstanding the foregoing, obligations with respect to any Confidential Information that constitutes a trade secret under applicable law continue for as long as that information remains a trade secret, and obligations with respect to personal data continue for as long as applicable privacy law requires.
6. Return or Destruction
Within ten (10) business days after the Disclosing Party’s written request, or after this Agreement ends, the Receiving Party shall return or destroy all documents and materials containing the Disclosing Party’s Confidential Information, including copies, notes and extracts, and shall certify in writing that it has done so. The Receiving Party may retain one archival copy solely to monitor its obligations under this Agreement, and need not purge copies held in routine backup systems that are not readily accessible, provided that any retained information remains subject to this Agreement for as long as it is retained.
7. No Licence; No Obligation; No Warranty
All Confidential Information remains the property of the Disclosing Party. Nothing in this Agreement grants the Receiving Party any licence or right under any patent, copyright, trademark, trade secret or other intellectual property right, except the limited right to use Confidential Information for the Purpose. Nothing in this Agreement obligates either Party to disclose any particular information, to proceed with any transaction, or to refrain from entering into any agreement with a third party. All Confidential Information is provided "as is", and the Disclosing Party makes no warranty as to its accuracy or completeness; the Receiving Party relies on it at its own risk, except as may be provided in a definitive written agreement between the Parties.
8. Trade Secrets and Whistleblower Notice
Each Party acknowledges that the other Party’s Confidential Information may include trade secrets protected by the Defend Trade Secrets Act of 2016 and applicable state trade secret law, and that misappropriation of a trade secret is subject to the remedies those laws provide in addition to the remedies in this Agreement.
Notice under 18 U.S.C. §1833(b): An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the individual’s attorney and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order. Nothing in this Agreement prohibits any individual from reporting possible violations of law to any governmental agency or from making other disclosures protected by whistleblower laws.
9. Remedies
Each Party acknowledges that unauthorized use or disclosure of the other Party’s Confidential Information would cause irreparable harm for which money damages would be an inadequate remedy. The Disclosing Party is therefore entitled to seek injunctive relief and specific performance to enforce this Agreement, without posting a bond and without proving actual damages, in addition to all other remedies available at law or in equity. In any action to enforce this Agreement, the prevailing Party is entitled to recover its reasonable attorney fees and costs from the other Party.
10. General
This Agreement is governed by the laws of the State of [Governing law (state)], without regard to its conflict of laws rules, and the Parties submit to the exclusive jurisdiction of the state and federal courts located in that state for any dispute arising out of it, except that either Party may seek injunctive relief in any court of competent jurisdiction. Notices shall be in writing and delivered to the addresses above, or to the email addresses in the execution record, and are effective on receipt.
This Agreement is the entire agreement between the Parties about its subject and supersedes all prior confidentiality agreements and understandings about the Purpose. It may be amended or waived only in a writing signed by both Parties. Neither Party may assign this Agreement without the other’s written consent, except to a successor to substantially all of its business to which this Agreement relates. If any provision is held unenforceable, it shall be enforced to the maximum extent permitted and the remainder shall continue in effect. This Agreement may be signed electronically and in counterparts, each of which is an original and all of which together are one instrument, and the electronic execution record, timestamps and document fingerprints kept by the signing platform are conclusive evidence of its execution. Each person signing represents that they are authorized to bind the Party for whom they sign.
Signatures
First party · Second party