Mutual Non-Disclosure Agreement
This is an example of a sample mutual NDA. This
agreement is useful in conducting and protecting
your information, technical data or know-how of
your business.
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EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING AS TO THEIR LEGAL EFFECT AND
COMPLETENESS. They are for guidance and should be modified to meet your needs and the
laws of your state. Use at your own risk. Docstoc and anyone who participated in providing or
© Copyright 2010 modifying any form is not creating or entering into an Attorney-Client relationship. Docstoc
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does not provide legal advice. The information and forms are not a substitute for the advice of
your own attorney.
MUTUAL NONDISCLOSURE AGREEMENT
THIS AGREEMENT is made effective as of the date of last signature below by and
between _____ [Instruction: Insert company name.], a _____ [Instruction: Insert state company
is incorporated in.] Corporation, having its principal place of business at _____ [Instruction:
Insert company principal business address.] (collectively known as the “Company”) and
______________________________________, [Instruction: Insert 2nd company name.] a
______________ [Instruction: Insert state 2nd company is incorporated in.] corporation (“Third
Party”) having its principal place of business at
_____________________________________________________________ [Instruction: Insert 2nd
company principal business address.
1. Purpose. The 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.
Definition. “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, and
which is marked or identified by the disclosing party as "proprietary" or “confidential”.
Confidential Information does not include information, technical data or know-how
which (i) is 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; or (ii)
prior or after the time of disclosure becomes part of the public knowledge or literature,
not as a result of any inaction or action of the receiving party, (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 secrets 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.
2. Non-Disclosure of Confidential Information. The Company and Third Party each
agree not to use the 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 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 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 in writing of the names
of the persons who have had access to Confidential Information of the other party. Each
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
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public domain or the possession of unauthorized persons. Each agrees to notify the other
in writing of any misuse or misappropriation of Confidential Information of the other that
may come to its attention. [Instruction: Be sure to include any specialized instructions
or precautions regarding the retention of materials which are 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.]
3. 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.
4. 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 be developing information internally, or receiving
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.
7. Term. This Agreement may be terminated at all times with a 30 days prior written
notice, provided however, that the confidentiality obligations herein shall terminate five
(5) [Option: Parties should consider if this term is 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.]
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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 _____ [Instruction: Insert state to govern.] as they apply to contracts entered into
and wholly to be performed in the _____ [Instruction: Insert state to govern.]. The
federal and state courts within the _____ [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 it’s 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 the
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 such other address or contact as the respective party
may specify from time to time in accordance with the provisions hereof.
11. Descriptive Headings. The descriptive headings used herein are for convenience of
reference only and they are not intended to have any effect whatsoever in determining the
rights or obligations of the parties hereto.
12. Severability. 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.
13. Construction. The pronouns used herein shall include, where appropriate, either gender
or both, singular and plural.
“COMPANY”
YOUR COMPANY NAME
Signature
Date:
Name:
3 of 3
Title:
“THIRD PARTY”
Signature
Date:
Name:
Title:
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ble, 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.
13. Construction. The pronouns used herein shall include, where appropriate, either
gender or both, singular and plural.
“COMPANY”
YOUR COMPANY NAME
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Signature
Date:
Name:
Title:
“THIRD PARTY”
Signature
Date:
Name:
Title:
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