Mutual Non-Disclosure Agreement by Utrechtgirl


									MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT THIS CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (this “Agreement”) is entered into as of [Date] by and between [ __________________] (“_________________”) and [__________________] (“_________________”). The __________________and ___________wish to explore a potential investment, relationship or transaction a (“Transaction”). From time to time Confidential Information (as defined below) may be disclosed by either party hereto (the “Disclosing Party”, as applicable) to the other party (the “Recipient”, as applicable) to further the purposes of the Transaction. Unless otherwise provided herein, the term “Confidential Information” means, collectively: proprietary or secret information of Disclosing Party, including but not limited to Disclosing Party’s procedures, policies, processes, systems, plans, business vision(s), methods, and financial or other data and information relating to merchandising, brand, software or product development, trademarks (whether or not registered), trade dress, trade concepts or inventions (whether or not subject to patent or copyright rights), marketing, communication, sales and operations, client accounts, services, contracts, strategy and business planning, or other business activities of Disclosing Party, its vendors, suppliers, and customers whether made in written or oral form and inclusive of all notes, analyses, compilations, studies, records, drawings, blueprints, memoranda, analyses, summaries or other documents; information that would constitute a trade secret, is not generally known in the applicable industry, would logically be considered confidential or proprietary to the Disclosing Party, would do the Disclosing Party harm if divulged, or, if disclosed in writing, is marked “confidential”, “privileged” or “proprietary” by the Disclosing Party or, if disclosed orally or in the form of tangible materials, is indicated at the time of disclosure to be confidential , privileged or proprietary; and all work-product (including, without limitation, attorney work product), work papers, analyses, memoranda, and summaries generated or derived by Recipient from the foregoing (collectively “Notes”). Disclosures of Confidential Information will be subject to the following conditions as of the date hereof: 1. Recipient shall control the Confidential Information disclosed to it and shall: (a) refrain from using the Confidential Information for any purpose other than to evaluate and explore a Transaction; other than in connection with a Transaction, refrain from using the Confidential Information for its own use, advantage, or commercial purpose; refrain from disclosing the substance of this Agreement or a Transaction to any third party, except as necessary to operate its



business, or obtain any governmental permits, licenses, approvals, and the like; and (d) restrict access to the Confidential Information, except that Recipient may disclose Confidential Information of the Disclosing Party to any, directors, officers, employees, advisors and consultants, on a need-to –know basis, solely for the purposes of furthering a Transaction and shall advise such directors, officers, employees, advisors and consultants of the restrictions set forth herein with respect to the use of such Confidential Information.

2. Recipient acknowledges that the names, logos, service marks, trademarks, tradedress, and tradenames, whether or not registered, of Disclosing Party (collectively, the “Marks”), are the proprietary Marks of Disclosing Party and agrees that it will not employ the Marks for any reason, except as expressly permitted in writing by Disclosing Party. Recipient further agrees that it will not: (a) adopt any trademark, service mark, word, symbol, letter or design that is confusingly similar to the Marks; apply for, seek registration of, or take any other action, whether singularly or in concert with others, to establish in Recipient or other(s) any ownership rights in the Marks, or any word or mark confusingly similar thereto; or perform any action, direct or indirect, which would reasonably be expected to prejudice or adversely affect the validity of the Marks or Disclosing Party’s ownership thereof.



3. The following information is not Confidential Information hereunder, and the foregoing obligations of confidentiality do not apply to any information that: (a) was already published or otherwise in the public domain at the time it is disclosed by the Disclosing Party to the Recipient or at the time it is disclosed by the Recipient to a third party (other than by a breach of this Agreement); was already available or known to the Recipient (as established by the Recipient’s business records) at the time it is disclosed to the Recipient by the Disclosing Party; is or becomes publicly known without fault on the part of Recipient;




is disclosed to Recipient by a third party not subject to any confidentiality obligation or restriction owed to the Disclosing Party; is independently developed by the recipient without reference to information disclosed by the Disclosing Party, provided such development can be adequately substantiated by the Recipient’s business records; is or has been disclosed by the Disclosing Party to a third party not subject to any confidentiality obligation or restriction to the Disclosing Party; is disclosed by the Recipient as required by applicable law, provided that, if such information is to be disclosed in response to an order of a court or other governmental authority, the Recipient must notify the Disclosing Party of such order and must use commercially reasonable efforts to ensure that such notification is sufficiently prompt to provide the Disclosing Party a reasonable opportunity to seek a protective order prior to any such disclosure; or is used or disclosed by the Recipient with the prior, written approval of the Disclosing Party.





4. Each party hereto acknowledges that its failure to comply with any of the provisions of this Agreement may irreparably harm the business of the other party, and that such other party may not have an adequate remedy at law in the event of such noncompliance. Therefore, each party acknowledges that the other party is entitled to seek injunctive relief without the posting of bond or other security, in addition to whatever other remedies to which it may be entitled, in any court of competent jurisdiction against any acts of non-compliance by either party under this Agreement. The parties hereto hereby consent to the exclusive jurisdiction of the courts of --------as the appropriate forum for seeking equitable relief pursuant to this Section 4. 5. Recipient understands and acknowledges that Disclosing Party does not make any representation or warranty as to the accuracy or completeness of the Confidential Information. Recipient agrees that neither Disclosing Party, nor its agents or representatives shall have any contract liability hereunder to Recipient, its agents, representatives, or shareholders with respect to the accuracy or completeness of the Confidential Information. Recipient further agrees and understands that Confidential Information is not being furnished for use in an offer or sale of securities of the Company and is not designed to satisfy the requirements of securities laws in connection with any offer or sale of such securities to Recipient. This Agreement does not constitute a proposal or an offer to enter into any Transaction or a commitment by Disclosing Party to do business with Recipient.

6. This Agreement shall be governed by, construed and enforced in accordance with the laws of () . Any controversy, dispute, or claim arising out of or relating to this Agreement shall be settled at the courts of -------. 7. This Agreement commences as of the date hereof and shall terminate upon the earlier of (a) execution of a written agreement between the parties hereto providing for such termination, and (b) the one (1) year anniversary of the date hereof (as applicable, the “Term”); provided, however, that the obligations of confidentiality set forth herein shall continue until the earlier of (i) the occurrence or satisfaction of one of the conditions listed in Section 3 (but only with respect to that portion of the Confidential Information satisfying such condition) and (ii) the two (2) year anniversary of the termination of this Agreement. 8. Each party hereto agrees that at the end of the Term, Recipient shall, upon request of Disclosing Party, (a) either (i) return all tangible copies of Disclosing Party’s Confidential Information (excluding Notes) to Disclosing Party or (ii) certify to Disclosing Party the destruction thereof, and (b) certify to Disclosing Party the destruction of all Notes, to the extent permitted by Recipient’s document retention policies and excluding, in all cases, attorney work product of the Recipient. 9. All notices and communications required or permitted under this Agreement are to be in writing and are deemed to be duly given on the date of delivery if sent to the party to whom notice is to be given either by hand delivery, registered mail, postage prepaid, or by courier delivery service to the address set forth above. 10. This Agreement does not create a relationship of agency, partnership, joint venture, or license between the parties hereto. 11. This writing constitutes the entire agreement and understanding between the parties hereto at the time of execution and delivery hereof as to matters described herein and supersedes all prior agreements, whether written or oral, between the parties hereto with respect to the subject matter hereof. 12. This Agreement may not be amended orally, but only by a written agreement signed by both parties hereto. 13. This Agreement may be executed in one or more counterparts (delivery of which may occur via facsimile), all of which shall constitute one and the same instrument.

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.

[ _________________] [_______________________ ________________________] Attention: _______________ By: ____________________ Name: _________________ Its: ____________________

[Other Entity] ________________________ ________________________ Attention: _______________ By: ____________________ Name: __________________ Its: ____________________

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