This is an agreement whereby two parties mutually agree to keep confidential certain proprietary information they learn through the course of their interaction. Confidential information includes, but is not limited to, patents, trade secrets, business plans, designs, copyrighted work, ideas, discoveries, and models. In addition, this agreement disclaims the confidentiality of certain information that is freely available in the public domain. This agreement should be used by small businesses or other entities that want to mutually agree to keep certain proprietary information confidential.
Mutual Non-Disclosure Agreement Template This Mutual Non-Disclosure Agreement is made between two parties to keep certain information confidential when exploring a business opportunity. Confidential information includes, but is not limited to, patents, trade secrets, business plans, designs, copyrighted work, ideas, discoveries, and models. Furthermore, the agreement establishes which information is excluded from the confidentiality requirement. It contains standard terms and conditions commonly found in these types of agreements. This should be used by small businesses to protect the confidentiality of their proprietary information. MUTUAL NON-DISCLOSURE AGREEMENT THIS AGREEMENT is made effective as of the date of the last signature below, by and between _____ [Instruction: Insert first company’s name], a _____ [Instruction: Insert state company is incorporated in if applicable] ccorporation, having its principal place of business at ________ [Instruction: Insert first company’s principal business address] (“Company”) and ______________________________________, [Instruction: Insert second company’s name] a ______________ [Instruction: Insert state 2n company is incorporated in] corporation (“Third Party”) having its principal place of business at _____________________________________________________________ [Instruction: Insert second company’s principal business address] 1. Purpose Company and Third Party wish to explore a business possibility under which each may disclose all or a portion of its Confidential Information to the other. 2. Definition the term “Confidential Information” “Confidential Information” means any information, technical data, or know-how, including, but not limited to, that which relates to research, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, marketing, or finances disclosed orally or in written or electronic form, which is marked or identified by the disclosing party as “proprietary” or “confidential.” Confidential Information does not include information, technical data, or know-how that which is: (i) in the possession of the receiving party at the time of disclosure, as shown by the receiving party’s files and records immediately prior to the time of disclosure, (ii) not as a result of any inaction or action of the receiving party prior to or after the time the disclosure becomes part of the public knowledge or literature, (iii) is approved for release by the disclosing party, or (iv) is independently developed by the receiving party without the use of any Confidential Information of the other party. [Comment: Parties should carefully consider whether or not they wish to include trade secret information within the definition of “Confidential Information.” If so, care should be taken to ensure proper language is included herein and protocols are developed to ensure the protection of such trade secrets] 3. Non-Disclosure of Confidential Information Company and Third Party each agree not to use Confidential Information disclosed to it by the other party for its own use or for any purpose except to carry out discussions concerning and the undertaking of any business relationship between the two. Neither party will disclose the Confidential Information of the other to third parties or to the first party’s employees, except employees who are required to have the information in order to carry out the contemplated business. Each party has had or will have employees to whom Confidential Information of the other is disclosed, sign a Non-Disclosure Agreement in content substantially similar to this Agreement and will notify the other party in writing of the names of the persons who have had access to Confidential Information of the other party. Each party agrees that it will take all reasonable steps to protect the secrecy of and avoid disclosure or use of Confidential Information of the other in order to prevent it from falling into the public domain or the possession of unauthorized persons. Each party agrees to notify the other in writing of any misuse or misappropriation of Confidential Information of the other that may come to such party’s attention. [Instruction: to include any specialized instructions or precautions regarding the retention of materials to be taken, including, for example, whether or not same must be retained in a separate, locked filing cabinet or room, and who will have access to the keys or other access device to such cabinet or room] 4. Return of Materials Any materials or documents which have been furnished by one party to the other will be promptly returned, accompanied by all copies of such documentation, after the business possibility has been rejected or concluded. No party with access to the other party’s Confidential Information shall be permitted to retain, copy, or otherwise store any of the other party’s Confidential Information, including by any hard copy or any electronic file, forwarding by any electronic means, storing on any hard drive or portable hard drive or through any other method. 5. Intellectual Property Rights Nothing in this Agreement is intended to grant any rights under any patent, trademark, trade secret, or copyright of either party, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information, except the limited right to review such Confidential Information solely for the purposes of determining whether to enter into the proposed business relationship between the parties and carrying out such relationship. The disclosing party warrants that it has the right to disclose its Confidential Information to the receiving party. Otherwise, all information is provided “as is” and without any warranty, express, implied or otherwise, regarding its accuracy or performance. 5. Export Controls Each recipient of Confidential Information agrees that it will not export outside the United States, if a United States company or citizen, or re-export, if a foreign company or citizen, any Confidential Information or direct product thereof, except as permitted by the laws and regulations of the United States or foreign country with jurisdiction over them and by the disclosing party in writing. 6. Independent Development Each disclosing party understands that the receiving party may currently or in the future develop information internally, or receive information from other parties that may be similar to the disclosing party’s Confidential Information. Accordingly, nothing in this Agreement shall be construed as a representation or inference that the receiving party will not develop products, or have products developed for it, that compete with the products or systems contemplated by the disclosing party’s confidential information except as set forth herein. © Copyright 2013 Docstoc Inc. 2 7. Term This Agreement may be terminated at all times with ____ (__) days prior written notice, provided however, that the confidentiality obligations herein shall terminate ____ (__) [Option: Parties should insert a term that realistic, given the industry standard and rate of technology change] years following the date of disclosure. [Option: Parties should consider if there is a term in which to return materials] 8. Miscellaneous This Agreement shall be binding upon and for the benefit of the undersigned parties, their successors, and assigns, provided that Confidential Information may not be assigned without consent of the disclosing party. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of _____ [Instruction: Insert state to govern] as they apply to contracts entered into and wholly be performed in the State of _____ [Instruction: Insert state to govern]. The federal and state courts within the State of _____ [Instruction: Insert state to govern] shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. 9. Remedies Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other party’s business and Confidential Information, and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach of any covenant or agreement set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the other party and that, in addition to any other remedies that may be available in law, at equity, or otherwise, the other party shall be entitled to obtain injunction relief against the threatened breach of the Agreement or any continuation of any such breach, without the necessity of proving actual damages. 10. Notices All notices hereunder shall be sent to either party at the address and to the contact person specified below, or to such other address or contact as the respective party may specify from time to time in accordance with the provisions herein. 10. Descriptive Headings The descriptive headings used herein are for convenience of reference only and are not intended to have any affect whatsoever in determining the rights or obligations of the parties hereto. 11. Severability © Copyright 2013 Docstoc Inc. 3 If any provision of this Agreement or the application thereof shall, for any reason and to any extent, be invalid or unenforceable, neither the remainder of this Agreement nor the application of the provision to other persons, entities, or circumstances shall be affected thereby, but instead shall be enforced to the maximum extent permitted by law. 12. Construction The pronouns used herein shall include, where appropriate, either gender or both, singular and plural. “COMPANY” Signature Date: Name: Title: “THIRD PARTY” Signature Date: Name: Title: © Copyright 2013 Docstoc Inc. 4
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