This is an agreement whereby two parties mutually 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 small businesses or other entities that want
to mutually agree to keep proprietary information confidential.
MUTUAL NON-DISCLOSURE AGREEMENT
This Mutual Non-Disclosure Agreement (the “Agreement”), which is hereby made on
this ________________ day of ______________________, 20__________, governs the
disclosure of information by and between ____________________________ and
1. Confidential Information
“Confidential Information” shall mean any information provided by either Party in
writing, or communicated orally, electronically, or in any other form, to the other Party,
including but not limited to patent(s) and patent applications, trade secret, business plans,
designs, copyrighted work, proprietary information, ideas, discoveries, techniques, sketches,
drawings, works of authorship, models, inventions, creations, improvements, developments
know-how, processes, apparatuses, equipment, systems, components, technologies, algorithms,
formulae, software programs, software source documents, products and services, customer lists,
suppliers, investors, employees, licensors, licensees, affiliates, partners, business forecasts, sales
and merchandising, training methods and materials, and marketing plans.
2. Exceptions to Confidential Information
Confidential Information shall not include the following:
a. Information that was freely available in the public domain at the time it was
b. Information that subsequently came to public domain through no fault of the
c. Information that is in the receiving Party’s possession free of any obligation of
confidence at the time it was communicated to the receiving Party by the disclosing Party;
d. Information independently developed by the receiving Party or its representatives
without reference to any information communicated to the receiving Party by the disclosing
e. Information provided by receiving Party in response to a valid order by a court or
other governmental body or disclosure that is otherwise required by law; and
f. Information approved for release by written authorization of an officer or
representative of the disclosing Party.
3. Use of Confidential Information
The receiving Party hereby agrees: (a) to hold the Confidential Information in strict
confidence and to take all reasonable steps and precautions to protect such Confidential
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Information (including, without limitation, all precautions the receiving Party employs with
respect to its own confidential information); (b) not to disclose any such Confidential
Information or any information derived therefrom to any third person or entity; (c) not to make
any use of such Confidential Information except to evaluate internally its relationship with the
disclosing Party; and (d) not to copy or reverse engineer any such Confidential Information.
4. Permitted Disclosures
Receiving Party shall disclose the Confidential Information received under this
Agreement to any person within its organization only if such persons: (a) have a need to know
and (b) are bound in writing to protect the confidentiality of such Confidential Information. This
Section shall survive and continue after the expiration or termination of this Agreement and shall
bind the receiving Party, its employees, agents, representatives, successors, heirs, and assigns.
Receiving Party recognizes that all work product and any tangible information including,
but not limited to, plans, photographs, records, data, notes, reports, and other documents
prepared by receiving Party by using the Confidential Information of disclosing Party, including
all copies thereof, and such work product and information shall be the sole property of disclosing
Party. This Agreement shall not be construed in a manner allowing the receiving Party to
acquire, by implication or otherwise, any right in, title to, or license in respect of the Confidential
Information disclosed to it by the disclosing Party. Upon receipt of any request by the disclosing
Party, the receiving Party agrees to immediately deliver all such materials prepared by receiving
Party to disclosing Party.
This Agreement shall terminate ____________ (___) year(s) from the date above written.
The receiving Party’s confidentiality obligations under this Agreement, however, shall survive
the termination of this Agreement and shall be binding for a period of _________ (____) years.
7. Return of Confidential Information
All Confidential Information provided by disclosing Party under this Agreement shall
remain the sole and exclusive property of the disclosing Party. Receiving Party agrees to return
and destroy all Confidential Information to Disclosing Party within ____ (__) days of written
demand by disclosing Party.
8. Specific Performance
The receiving Party understands and acknowledges that any disclosure or
misappropriation of any of the Confidential Information in violation of the terms of this
Agreement may cause disclosing Party irreparable harm, the amount of which may be difficult to
ascertain, and therefore the receiving Party agrees that disclosing Party shall have the right to
apply to a court of competent jurisdiction for specific performance or for an order restraining and
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enjoining any such further disclosure or breach and for such other relief as the disclosing Party
shall deem appropriate. Such right of the disclosing Party shall be in addition to any other
remedies otherwise available to the disclosing Party at law or in equity. Receiving Party
expressly waives the defense that a remedy in damages will be adequate and any requirement in
an action for specific performance or injunction for the posting of a bond by the disclosing Party.
a. This Agreement sets forth the entire agreement and understanding between the
Parties and supersedes all prior oral and written agreements and understandings between them
relating to the subject matter of this Agreement. This Agreement may not be modified or
discharged, in whole or part, except by an agreement in writing signed by both Parties. This
Agreement may not be assigned or otherwise transferred by either Party without the prior written
consent of the non-transferring Party.
b. This Agreement will be binding upon, and inure to the benefit of, the Parties
hereto and each Party’s respective successors and assigns.
c. In the event that any provision of this Agreement is held by a court of competent
jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant
jurisdiction, the validity of the remaining provisions shall not be affected and the rights and
obligations of the Parties hereto shall be construed and enforced as if the Agreement did not
contain the particular provision held to be unenforceable.
d. This Agreement shall be governed by and interpreted in accordance with the laws
of the State of _________________, without regard to its provisions as to choice of law.
e. Each Party hereto represents and warrants that it has the full power and authority
to enter into and perform this Agreement, and each Party knows of no law, rule, regulations,
order, agreement, promise, undertaking, or other fact or circumstance that would prevent its full
execution and performance of this Agreement.
f. This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the
__________ day of ____________________, 20__________.
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