Mutual Confidentiality and Nondisclosure Agreement

VIEWS: 1,055 PAGES: 8

More Info
									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.

“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

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

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

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:

         If to Consultant/Contractor
                 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

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

© 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

To top