This is an agreement between a consultant and a client whereby both parties agree to keep confidential certain proprietary information they learn during 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, the agreement disclaims the confidentiality of certain information that was freely available in the public domain. This document should be used by consultants and their clients who mutually agree to keep proprietary information confidential.
This is an agreement between a consultant and a client whereby both parties agree to keep confidential certain proprietary information they learn during 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, the agreement disclaims the confidentiality of certain information that was freely available in the public domain. This document should be used by consultants and their clients who mutually agree to keep proprietary information confidential. MUTUAL CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT This MUTUAL CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (the “Agreement”) is made and entered into this ____ day of __________, 20__ (“Effective Date”), by and between [insert name of Consultant/Contractor], a [state]corporation, with offices at [insert address and phone number of Consultant/Contractor] (“Consultant/Contractor”), and [insert name of Owner/Client] a [state] corporation with offices at [insert address and phone number of Owner/Client] ( “Owner/Client”). As used herein, an “Affiliate” of a party is any other entity directly or indirectly controlling, controlled by or under common control with such party as of the date of this Agreement. As used herein, the term "control" shall mean (i) the legal, beneficial or equitable ownership, directly or indirectly, of at least a majority of the equity interests of an entity; or (ii) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity or the election of a majority of the board of directors or comparable governing body of an entity, whether through the ownership of voting securities, by contract or otherwise. WHEREAS, Owner/Client and Consultant/Contractor are each willing to disclose to the other and to receive certain Confidential Information (as hereinafter defined) from the other party in order to permit Owner/Client and Consultant/Contractor to determine the desirability of entering into a possible business transaction with each other relating to: [insert description of Project and/or Services to be rendered] offered by the Owner/Client (the “Transaction”), subject to the terms and conditions hereinafter set forth. NOW THEREFORE, in consideration of the foregoing premises and mutual promises hereinafter contained, Owner/Client and Consultant/Contractor agree as follows: 1. As used herein, the term “Disclosing Party” shall refer to either Owner/Client or Consultant/Contractor in connection with its disclosure of any such written or oral information to the other party, and the term “Receiving Party” shall refer to either Owner/Client or Consultant/Contractor in connection with its receipt of any such written or oral information from the other party. 2. The term “Confidential Information” shall mean and refer to all confidential or proprietary information, documents, and materials, whether printed or in machine-readable form or otherwise, including, but not limited to, processes, hardware, software, inventions, trade secrets, ideas, designs, research, know-how, business methods, production plans, marketing and branding plans, merger plans, human resource policies, programs, and procedures relating to and including but not limited to organizational structure, management, marketing and branding strategies, products and services, customer service, merger integration provisions, human resource and employee benefit policies, programs, and services, and internal communication processes and technology tools. Confidential Information shall include all information that should reasonably have been understood by the Receiving Party, because of legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the Disclosing Party, regardless of © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 2 whether such information is marked “Confidential.” Notwithstanding the foregoing, “Confidential Information” shall not include information which: (i) was or is obtained by the Receiving Party from a third party which, to the to the actual knowledge of the Receiving Party, was or is lawfully in possession of such information and was or is not in violation of any contractual or legal obligation to a Disclosing Party or other third party with respect to such information; (ii) is or becomes part of the public domain through no fault of the Receiving Party or its Representatives (as defined below); (iii) was or is independently ascertained or developed by the Receiving Party or its Representatives; or (iv) is approved for disclosure and release by written authorization of the Disclosing Party. 3. The Receiving Party, and the directors, officers, employees, agents or other representatives (including, without limitation, attorneys, accountants, consultants, investment bankers, financial advisors and lenders) of such party and its Affiliates (collectively, its “Representatives”) may produce reports, notes, analyses, compilations, files, data, forecasts, studies, memoranda or other documents which contain or otherwise reflect the Confidential Information or the Receiving Party’s review of or interest in such possible Transaction (collectively, the “Review Material”). The Confidential Information, together with the Review Material shall be referred to herein as the “Evaluation Material.” 4. The parties agree to use the Evaluation Material only for the Transaction and only in accordance with the terms of this Agreement. 5. Without the prior written consent of the other party, except as required by law or as otherwise permitted by Section 8, neither party nor its Representatives will disclose to any person the fact that the Confidential Information has been made available, that discussions or negotiations are taking place or have taken place concerning a possible Transaction between the parties or any of the terms, conditions or other facts with respect to any such possible Transaction, including the status thereof (collectively, the “Fact of Discussions”). 6. Subject to Sections 7 and 8 hereof: (i) each party hereto agrees to use the same degree of care and scrutiny with regards to the Evaluation Material as the Receiving Party would use with respect to its own Confidential Information, but in any case using no less than a reasonable degree of care, to avoid disclosure (including, but not limited to, disclosure to the United States government or any agency or department thereof), publication, dissemination, or use of any or all of the Confidential Information obtained hereunder; and © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 3 (ii) Evaluation Material will be kept confidential for a period of three (3) years from the date of disclosure of such Evaluation Material and shall not, without the prior written consent of the Disclosing Party, be disclosed by the Receiving Party or its representatives in any manner whatsoever, in whole or in part. 7. The parties agree that with respect to the other party’s Confidential Information a Receiving Party will: (i) not use the Evaluation Material other than in connection with the Transaction; (ii) reveal the Evaluation Material only to its Representatives who need to know the Evaluation Material for the purpose of evaluating such possible Transaction and who are informed by the Receiving Party of the confidential nature of the Evaluation Material; and (iii) at the Disclosing Party’s request, return promptly to such party or destroy (and confirm such destruction in writing to the Disclosing Party) any and all portions of the Confidential Information disclosed under this Agreement (including copies forwarded to Representatives), together with all copies thereof, and destroy all Review Material (and confirm such destruction in writing to the Disclosing Party), provided that the Receiving Party may retain one copy of the Evaluation Material in its confidential, restricted access files for archival purposes, which copy shall be maintained in accordance with the provisions of this Agreement. The Receiving Party shall be responsible for any breach of this Agreement by its Representatives. 8. If the Receiving Party or anyone to whom it transmits Evaluation Material pursuant to this Agreement is requested or required to disclose any of the Evaluation Material or the Fact of Discussions by administrative or judicial action (including without limitation by deposition, interrogatory, request for information in legal proceedings, subpoena, civil investigative demand, order, statute, rule, request or other requirement promulgated or imposed by a judicial, regulatory, self-regulatory, legislative body or governmental agency), the Receiving Party, if legally permitted, will promptly, after notice of such action, notify the Disclosing Party of such action to give Disclosing Party the opportunity to seek any other legal remedies to maintain such Evaluation Material in confidence. If such protective order or other remedy is not obtained, or the Disclosing Party waives compliance with the provisions of this Agreement, the Receiving Party will furnish only that portion of the Evaluation Material or the Fact of Discussions which is required or requested, and the Receiving Party will use reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Evaluation Material or the Fact of Discussions that is furnished. 9. The parties hereto understand that each may now market or have under development products and/or services which are competitive with products or services now offered or which may be offered by the other. Subject to the terms and conditions of this Agreement, © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 4 discussions and/or communications between the parties hereto will not serve to impair the right of either party to develop, make, use, procure, protect, and/or market products or services now or in the future which may be competitive with those offered by the other, nor require either party to disclose any planning or other information to the other. 10. Each party hereby represents to the other that the disclosure of the Confidential Information, as may be the case, will not violate any proprietary rights of third parties, including, without limitation, confidential relationships, patent and copyright rights, or other trade secrets, and that the disclosure between the parties will not violate any contractual obligations which Consultant/Contractor or Owner/Client may have to any third party. Each party further warrants that it has the right to disclose all Confidential Information that it discloses to the other party pursuant to this Agreement. 11. Except as otherwise provided herein, neither party makes any representation or warranty, express or implied, with respect to any Confidential Information and the Receiving Party agrees that it is entitled to rely solely on the representations and warranties made to it by the Disclosing Party in any final definitive agreement regarding the possible Transaction. Confidential Information is provided “as is” with all faults, and the Disclosing Party shall not be liable for the accuracy or completeness of the Confidential Information. Moreover, unless and until such a definitive agreement is entered into, neither the Disclosing Party nor the Receiving Party will be under any legal obligation of any kind whatsoever with respect to such Transaction except for the matters specifically agreed to in this Agreement. 12. Neither party shall be liable for any indirect, incidental, or consequential damages of any nature or kind resulting from or arising in connection with this Agreement. 13. All the Confidential Information disclosed to, delivered to, or acquired by a Receiving Party from a Disclosing Party hereunder shall be and remain the sole property of the Disclosing Party. 14. Disclosure of the Confidential Information disclosed by one party to the other shall not constitute any option, grant, or license to the Receiving Party of such Confidential Information under any patent, know-how, or other rights heretofore, now, or hereinafter held by the Disclosing Party. It is understood and agreed that the disclosure by either party hereto of the Confidential Information hereunder shall not result in any obligation on the part of either party to enter into any further agreement with the other with respect to the subject matter hereof or otherwise. 15. Each party hereto further acknowledges that remedies at law may be inadequate to protect against breach of this Agreement, and it hereby agrees in advance that the other party shall be entitled to seek injunctive relief. Such relief shall not be deemed to be the exclusive relief for a breach by either party of this Agreement but shall be in addition to all other remedies available at law or equity to the other party. © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 5 16. This Agreement is binding on the parties, their successors and assigns. No modification of this Agreement shall be effective unless in writing and signed by both parties hereto. 17. This Agreement will terminate three (3) years after the Effective Date, or may be terminated by either party at any time, for any reason or no reason, upon written notice to the other party. Sections 7(iii), 8, 9, 11, 14 and 15 will survive any such expiration or termination. 18. All notices, demands, requests or other communications given under this Agreement shall be in writing and be given by personal delivery, certified mail, return receipt requested, or nationally recognized overnight courier service to the address set forth below or as may subsequently in writing be requested. If to Owner/Client: Address Attn: If to Consultant/Contractor Address Attn: ___________________ Either party’s waiver of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition hereof. 19. This Agreement shall be governed, construed, and enforced in accordance with the laws of the Commonwealth of California, without regard to principles of conflicts of law. 20. This Agreement constitutes the complete agreement between the parties hereto and supersedes and cancels any and all prior communications and agreements between the parties with respect to the disclosure of Confidential Information related to the Transaction described herein and the subject matter hereof. IN WITNESS WHEREOF, the parties hereto by their duly authorized representatives have executed this Mutual Confidentiality and Nondisclosure Agreement upon the date first set forth above. © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 6 Owner/Client Consultant/Contractor By: By: Name: Name: __________ Title: Title: ________________________________ © Copyright 2013 Docstoc Inc. registered document proprietary, copy not 7
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