This Non-Disclosure Agreement (this "Agreement") is made and entered into as of this day of _________ ("Effective Date"), between the Disclosing Party _________ (the "Owner"), of _________, and the Recipient _________ (the "Recipient"), of _________.
The Parties wish to explore a business opportunity relating to the following reason:
_________
The Disclosing Party or Owner has requested, and the Recipient agrees that the Recipient will protect the confidential material and information that is to be disclosed between the Owner and the Recipient. Therefore, the parties agree as follows:
I. CONFIDENTIAL INFORMATION. The term "Confidential Information" means any information (including any and all combinations of individual items of information) disclosed by the Disclosing Party, be it a Person or a Company, to the Recipient, including any information disclosed prior to the Effective Date, either directly or indirectly, in writing, orally or by inspection of tangible objects (including, without limitation, research, product plans, products, services, equipment, customers, markets, software, inventions, discoveries, ideas, processes, designs, drawings, hardware, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets, and equipment), whether or not designated as "confidential" at the time of disclosure. Confidential Information may also include information of a third party that is in the Disclosing Party's possession and is disclosed to the Recipient under this Agreement.
Confidential Information shall not, however, include the following: Any information which the Recipient can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure to the Recipient by the Disclosing Party, be it a Person or a Company; (ii) becomes publicly known and made generally available after disclosure to Recipient by Disclosing Party through no action or inaction of the Recipient; (iii) is in the possession of the Recipient, without confidentiality restrictions, at the time of disclosure by the Disclosing Party as shown by the Recipient's then-contemporaneous files and records kept in the ordinary course of business; or (iv) readily ascertainable or independently developed.
If the Recipient becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality Agreement, the Recipient will provide the Disclosing Party prompt written notice of such disclosure and will assist said Disclosing Party in seeking a protective order or another appropriate remedy. If the Disclosing Party waives the Recipient's compliance with this Agreement or fails to obtain a protective order or another appropriate remedy, the Recipient will furnish only that portion of the Confidential Information that is legally required to be disclosed; provided that any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
II. PROTECTION OF CONFIDENTIAL INFORMATION. Non-Use, Non-Disclosure. Recipient agrees to all of the following: (i) To not copy any Confidential Information without prior written consent of the Disclosing Party or Owner; (ii) To not use any Confidential Information for any purpose except to evaluate and engage in discussions concerning a potential business relationship between Recipient and the Disclosing Party or Owner; (iii) To promptly notify the Disclosing Party or Owner if the Recipient understands that, or is conscious of, any possible unauthorized disclosure or use of the Confidential Information; (iv) To not disclose any Confidential Information to third parties or to employees of the Recipient, except to those employees who are required to have the information in order to evaluate or engage in discussions concerning the contemplated business relationship; (v) If applicable, the Recipient shall not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the Disclosing Party's or Owner Confidential Information and which are provided to the Recipient hereunder; (vi) The Recipient recognizes that the Disclosing Party or Owner has developed and/or acquired Confidential Information after a considerable amount of time and efforts invested, making said Confidential Information valuable, distinguishable, unique and a considerable asset, which is the property of the Disclosing Party or Owner and must be protected from any possible type of disclosure by the Recipient.
III. MAINTENANCE OF CONFIDENTIALITY, UNAUTHORIZED DISCLOSURE OF INFORMATION AND REMEDIES. (i) The Recipient agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. (ii) Without limiting the foregoing, the Recipient shall take at least those measures that the Recipient takes to protect its own most highly Confidential Information and shall have its assistants, partners, or employees who have access to Confidential Information sign a nonuse and Non-Disclosure Agreement in content substantially similar to the provisions hereof, prior to any disclosure of Confidential Information to such persons. (iii) The Recipient shall not make any copies of Confidential Information unless the same are previously approved in writing by the Disclosing Party or Owner. (iv) The Recipient shall reproduce the Disclosing Party's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original. (v) The Recipient shall immediately notify the Disclosing Party or Owner in the event of any unauthorized use or disclosure of the Confidential Information. (vi) The Recipient agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Disclosing Party or Owner, entitling said party to obtain injunctive relief to prevent the Recipient from completely or partially disclosing the Confidential Information, in addition to all legal remedies, including claims for losses and damages.
IV. NON-CIRCUMVENTION AND NON-SOLICITING. Notwithstanding anything to the contrary in this Agreement, the Recipient agrees for itself and, if applicable, its employees, its affiliates, and any other related parties that, for a period of _________, it will not engage in any action, attempt to do business with any business contact or third party of the Disclosing Party, that will bypass, circumvent, avoid or obviate the rights of the Disclosing Party or Owner, either directly or indirectly, to avoid the payment of fees, participation, equity or commissions to the Disclosing Party, whether by the Recipient or any other third party, in connection with any project, transaction or information introduced to said Recipient by the Disclosing Party. If such circumvention occurs, the Owner will be entitled to any commissions due pursuant to this Agreement or relating to such transaction.
V. RETURN OF CONFIDENTIAL INFORMATION. Upon the written request of the Disclosing Party or Owner, the Recipient shall return all documents and other tangible objects, which in any way relate to the Disclosing Party's Confidential Information, or any other type of documents representing Confidential Information, and all copies thereof which are in the possession of the Recipient shall be and remain the property of the Disclosing Party or Owner and shall be promptly returned to said party upon its request. In no event shall the Recipient have the right to use or exploit Residuals for any purpose after the return of Confidential Information to the Disclosing Party or Owner. As used herein, "Residuals" shall mean ideas, information, and understandings retained in the memory of the Recipient or Recipient's employees as a result of their review, evaluation, and testing of the Confidential Information.
VI. NO OBLIGATIONS BETWEEN THE PARTIES. Nothing herein shall obligate the Disclosing Party or Recipient to proceed with any transaction between them, be it the purchase of an item or any kind of service from the other party and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the use or commercialization of any products or business opportunity. Nothing in this Agreement shall be construed to restrict the Disclosing Party's use or disclosure of its own Confidential Information. The Agreement does not create contractual obligations of any kind, including, but not limited to, agency, partnership or joint venture. Thus, the purpose of this Agreement is merely to afford the parties' protection against misuse of Confidential Information exchanged during the exploration of the potential relationship.
VII. NO WARRANTY. ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN "AS IS" BASIS. THE DISCLOSING PARTY OR OWNER MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR PERFORMANCE OR WITH RESPECT TO NON-INFRINGEMENT OR OTHER VIOLATION OF ANY CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OF THE RECIPIENT, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE DISCLOSING PARTY OR OWNER BE LIABLE FOR ANY KIND OF DAMAGES THAT OCCUR IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE CONFIDENTIAL INFORMATION. The Disclosing Party or Owner does not represent or warrant that any product or business plans disclosed to and shared with the Recipient will be marketed or carried out as disclosed, or at all. Any actions taken by the Recipient in response to the disclosure of the Confidential Information shall be at the full and sole risk of the Recipient.
VIII. LIMITED LICENSE TO USE. The Recipient recognizes that nothing in this Agreement is intended to grant said party any rights under any patent, mask work right or copyright of the Disclosing Party, nor shall this Agreement grant the Recipient any rights in or to Confidential Information except as expressly set forth herein. The Recipient will not gain any intellectual property rights under this Agreement except the limited right to use the Confidential Information as set forth above.
IX. INDEMNITY. Each party hereby agrees to indemnify, defend, and hold the other party, as well as its officers, agents, affiliates, representatives, or employees harmless from any and all claims, demands, costs, liabilities, losses, expenses, and damages (including reasonable attorneys' fees, costs, and expert witnesses' fees) arising out of or in connection with any claim that, taking the claimant's allegations to be true, would result in a material breach of any duty whatsoever by the indemnifying party of any of its warranties and covenants.
X. ATTORNEY'S FEES. In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover and reclaim reasonable attorney's fees and costs.
XI. TERM. This Agreement shall survive for _________ from the Effective Date or until the Disclosing Party or Owner sends the Recipient a written notice explicitly stating that all Confidential Information disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Recipient.
XII. MISCELLANEOUS PROVISIONS. This Agreement shall bind and inure to the benefit of the parties. This Agreement will be interpreted and construed in accordance with the laws of the _________, without regard to conflict of law principles. This Agreement shall not be assignable to a third party by either party. Neither party may delegate its duties under this Agreement without the prior written consent of the other party. This Agreement contains the entire Agreement between the parties with respect to the Opportunity and supersedes all prior written and oral agreements between the parties regarding the business opportunity. If a court or other body of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. No provision of this Agreement may be waived except by a writing executed by the Party against whom the waiver is to be effective. A party's failure to enforce any provision of this Agreement shall neither be construed as a waiver of the provision nor prevent the Party from enforcing any other provision of this Agreement. No provision of this Agreement may be amended or otherwise modified except by a writing signed by the parties to this Agreement.
XIII. WHISTLEBLOWER IMMUNITY. This Non-Disclosure Agreement recognizes the immunity granted to the Recipient under the Defend Trade Secrets Act, which establishes in § 1833(b) (1) that individuals will have civil or criminal immunity for the disclosure of a trade secret that: (a) is made "in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney" and solely for "the purpose of reporting or investigating a suspected violation of law"; or (b) is made in a complaint or document "filed in a lawsuit or other proceeding" so long as the filing is made under seal.
XIV. SIGNATORIES. Each Party warrants that the person indicated on the signatory line to this Agreement has all authority necessary to bind the Party and is the appropriate person to sign this Agreement. Each Party warrants that the present Agreement shall be realized by _________ and _________.
OWNER:
By: _______________________________
_________
RECIPIENT:
By: _______________________________
_________