MUTUAL NONDISCLOSURE AGREEMENT
THIS MUTUAL NONDISCLOSURE AGREEMENT (the “Agreement”) is made
effective as of ___[Day, Month, Year]__ (the “Effective Date”) by and between
______________________(hereinafter “COMPANY”), a ____________ corporation located
at: ________________________________ and _____________________________________
(hereinafter “XXXX”) a ________________ located at _______________________________,
collectively, (the “Parties”) with reference to the following:
RECITALS
WHEREAS, the Parties intend to enter into discussions regarding COMPANY
participation in one or more of XXXX ___________ program(s) (the “Program(s)”); and
WHEREAS, in order to conduct such discussions and any subsequent negotiations
between the Parties, each party may have need of information from the other Parties that is
regarded as confidential to the disclosing party;
NOW, THEREFORE, for and in consideration of the foregoing premises, and the
mutual promises and undertakings contained herein, the Parties hereto agree as follows:
DEFINITIONS
1. Definitions shall be defined as follows:
“Proprietary Information” as used herein, shall mean information and related materials
(whether written or oral) of the Disclosing Party disclosed for the Purpose identified below or
which comes to the attention of a party or its employees, officers, agents or advisors during the
course of communications between the Parties for the Purpose and is disclosed during the term
of this agreement relating to financial information or projections; lists of and information about
suppliers, dealers, customers, potential customers, and associated statistical and financial
information, specifications and uses of products and services; product research; sales, marketing
and strategic plans; and other business information not recognized as public information.
“Purpose of the Disclosure” as used herein, shall mean to facilitate discussions about,
and the evaluation of, a potential business relationship between the Parties relating to the
Program and related or additional electronic financial services for the COMPANY.
“Person” as used herein, shall be broadly interpreted to include, without limitation, any
corporation, company, partnership, other legal entity and individual.
AGREEMENT
2. The Parties Hereby Agree as Follows:
2.1 Property of Disclosing Party. All right, title and interest in and to the
Proprietary Information shall be and remain vested in Disclosing Party. Nothing in this
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Agreement shall grant Receiving Party any license or right of any kind with respect to the
Proprietary Information, other than to review and evaluate such information solely for the
Purpose of the Disclosure set forth above. All Proprietary Information is provided on an “AS
IS” basis, and all representations and warranties, express or implied, are hereby disclaimed, and
Disclosing Party shall not be liable to any other for special, indirect or consequential damages,
including but not limited to lost profits, even if the Parties have knowledge of the possibility of
such damages.
2.2 Receiving Party's Obligations.
(A) Receiving Party agrees that it will:
(i) use commercially reasonable efforts to safeguard the Proprietary
Information, and to prevent any unauthorized access, reproduction, disclosure,
and/or use of any of the Proprietary Information other than for the Purpose of the
Disclosure and then only in strict compliance with the provisions hereof and
subject to any applicable laws;
(ii) disclose the Proprietary Information only to those officers, directors,
employees, consultants and advisors of Receiving Party who need to know such
information in order to carry out the Purpose of the Disclosure and, in the event
the employment or engagement of any such person is terminated, Receiving
Party agrees to use its commercially reasonable efforts to recover any Proprietary
Information in such person's custody or control;
(iii) not remove any copyright notice, trademark notice, and/or other
proprietary legend or indication of confidentiality set forth on or contained in any
of the Proprietary Information;
(iv) not to disassemble or decompile software, or otherwise attempt to
reverse engineer the design and function of any of the Proprietary Information,
nor will it develop, manufacture, produce, and/or distribute any software or other
product(s) derived from or which otherwise use any of the Proprietary
Information, without entering into a separate license agreement with Disclosing
Party;
(v) promptly notify Disclosing Party in writing of any unauthorized use
or disclosure of the Proprietary Information, including a detailed description of
the circumstances of the disclosure and the Parties involved;
(vii) in the event that Receiving Party is required to disclose any portion
of any Proprietary Information received from the Disclosing Party by operation
of law, the Receiving Party may do so, provided the Receiving Party shall
immediately notify the other party in writing and each party shall provide the
other party with reasonable cooperation and assistance in obtaining a suitable
protective order, and in taking any other steps reasonably necessary, to preserve
the confidentiality of any such Proprietary Information;
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(viii) not use or exploit the Proprietary Information of the other party for
its own benefit or that of any third party and may make only such use of that
Proprietary Information as is contemplated by this Agreement or as may
otherwise be specifically authorized in writing by the disclosing party;
(ix) treat any Proprietary Information which it receives pursuant to this
Agreement with care no less than it employs for its own Proprietary Information
of a similar nature which it does not wish to disclose, publish or disseminate; and
(x) keep and protect any of XXXX’s customer’s information in the
strictest confidence.
(B) Notwithstanding the provisions of Section 2.3(A) above, the Receiving
Party has no obligation to maintain the confidentiality of any Proprietary Information
which: (a) Receiving Party can demonstrate was known by Receiving Party prior to the
disclosure thereof by Disclosing Party; (b) properly came into the possession of
Receiving Party from a third party which was not under any obligation to maintain the
confidentiality of such information; (c) has become part of the public domain through no
act or fault on the part of the Receiving Party in breach of this Agreement; or (d)
Receiving Party can demonstrate that it was independently developed by or for
Receiving Party without the use of Proprietary Information.
3. No Disclosure of Discussion. Without each party’s consent, neither party, nor their
representatives or assigns, will disclose to any Person either the fact that discussions or
negotiations are taking place concerning cooperative activities or the status thereof. The term
“Person” as used in this Agreement shall be broadly interpreted to include without limitation
any corporation, company, partnership, other legal entity and individual.
4. Term. Receiving Party’s obligations hereunder with respect to Proprietary Information
disclosed by the Disclosing Party shall commence upon the Effective Date and shall terminate
three (3) years thereafter. Promptly upon such termination or Disclosing Party's request,
Receiving Party shall return or certify the destruction or return of all Proprietary Information
and shall not retain any copies thereof. All confidentiality obligations respecting the Parties
Proprietary Information will remain in effect after termination and will apply to either party’s
successors or assigns. This provision will survive termination of this Agreement.
5. Competition. Neither party has an obligation under this Agreement to enter into any
other agreement with the other party. Nothing in this Agreement shall prohibit or restrict either
party’s right to develop, use, or market products or services similar to or competitive with those
of the other party disclosed in the Proprietary Information as long as it shall not thereby breach
this Agreement. Additionally, each party acknowledges that the other may already possess or
have developed products or services similar to or competitive with those of the other party to be
disclosed in the Proprietary Information.
6. Equitable Relief. Receiving Party agrees that any unauthorized use of the Proprietary
Information by Receiving Party shall cause Disclosing Party irreparable harm for which its
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remedies at law would be inadequate. Therefore, in addition to any other rights it may have at
law, the Disclosing Party shall be entitled to seek equitable relief.
7. Disputes and Arbitration.
7.1 Dispute Resolution. In the event a controversy, claim or dispute arising out of
or relating to this Agreement or the transactions contemplated hereby (“Dispute”) arises
between XXXX (and/or any third-party vault cash provider) and COMPANY relating to this
Agreement and the performance or scope of obligations hereunder, either party may request by
notice that the dispute be escalated to respective senior management personnel for
consideration. Upon request, senior management personnel will conference by telephone or (if
convenient) in person within a reasonable period of time not to exceed fifteen (15) days to
determine if the dispute can be resolved.
7.2 Binding Arbitration. Any Dispute not resolved pursuant to the provisions
herein, shall be referred to arbitration for determination. The arbitration shall be conducted in
accordance with such rules as may be agreed upon by the parties, or failing agreement within
twenty (20) days after arbitration is demanded, in accordance with the Commercial Arbitration
Rules of the American Arbitration Association (“AAA”), subject to any modifications contained
in this Agreement. The Dispute shall be determined by one (1) arbitrator, except that if the
Dispute involves an amount in excess of $1,000,000 (exclusive of interest and costs, three (3)
arbitrators shall be appointed to decide by majority vote unless the parties agree otherwise. The
arbitrator(s) shall be selected from panels maintained by the AAA unless the parties agree
otherwise. The determination of the arbitrator shall be binding upon the parties and judgment
upon the award rendered may be entered in any court having jurisdiction thereof. The
arbitrator(s) shall base the award on the applicable law judicial precedent, which would apply if
the Dispute were decided by a United States District Court Judge sitting in ___[State]____. The
award shall be in writing and include the findings of fact and conclusions of law upon which it
is based unless the pa