Non-Disclosure Agreement (Mutual NDA)

Party A, its parents, subsidiaries, and/or affiliates (collectively “Party A”) and Party B, its parents, subsidiaries, and/or affiliates (collectively “Party B”) hereby enter into this Mutual Non-Disclosure Agreement (“Agreement”) as of _______________________, 20_____, (“Effective Date”) and agree as follows:

 

 

1. The parties are exploring a potential business relationship (the “Purpose”), and, in connection therewith, each party may disclose to the other certain information that the disclosing party (“Discloser”) desires the receiving party (“Recipient”) to treat as confidential.

 

2. “Confidential Information” means all non-public technical or non-technical information disclosed or made available by or on behalf of a Discloser to a Recipient in connection with the Purpose, whether directly or indirectly, and whether in written, oral, electronic, visual, or other form, including by inspection of tangible materials, whether or not marked or otherwise identified as “Confidential,” “Proprietary,” or similarly, including business development information, sales information, product information and plans, pricing information, financial information, forecasts and projections, marketing plans and strategies, business plans and strategies, customer information, data, research and development information, software, hardware, source code, object code, documents, emails, APIs, specifications, brochures, databases, designs, and proprietary formulae and algorithms.

 

3. The Recipient will: (a) hold the Confidential Information in confidence; (b) restrict disclosure of such Confidential Information to those of its employees, representatives, affiliates’ employees, and agents with a need-to-know and solely for the Purpose and who have previously agreed (e.g., as a condition to their employment or agency) to be bound by substantially similar terms as those contained in this Agreement; and (c) use the Confidential Information solely for the Purpose. The Recipient agrees that any Confidential Information shall be handled with at least the same degree of care which it applies to its own confidential information, but in no event, less than a commercially reasonable degree of care. Each party acknowledges and agrees that the Discloser’s Confidential Information shall remain the Discloser’s property.

 

4. The restrictions in Section 3 will not apply to Confidential Information to the extent that it: (a) was publicly known at the time of disclosure or becomes publicly available thereafter without breach of this Agreement by the Recipient; (b) was independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information, as demonstrated by competent written records in the Recipient’s possession; (c) was known to the Recipient or its employees, affiliates, or agents prior to receipt from the Discloser, as demonstrated by competent written records in the Recipient’s possession; or (d) was lawfully received by the Recipient from a third party whom the Recipient did not know was under an obligation of confidentiality to the Discloser. The Recipient may disclose Confidential Information to the extent required by applicable law, regulation, or court order; provided that, to the extent legally permitted, the Recipient gives the Discloser prior written notice of such requirement, limits such disclosure to that portion legally required, and reasonably cooperates, at the Discloser’s expense, with the Discloser’s efforts to obtain confidential treatment or other appropriate protection. 

 

5. Upon the Discloser’s written request, the Recipient shall promptly return or destroy all copies of the Confidential Information in the possession or control of the Recipient or its employees, affiliates, or agents, and, upon request, certify such return or destruction in writing through an authorized representative; provided, however, that the Recipient may retain copies required for legal, compliance, or bona fide recordkeeping purposes, and routine backup copies, in each case subject to this Agreement. No use of Confidential Information is permitted except as expressly provided in this Agreement.

 

6. Neither party is obligated to disclose any information to the other, and any disclosure under this Agreement is voluntary. No disclosure under this Agreement shall, by itself, (a) grant any license or other rights in or to any intellectual property comprising or relating to the Discloser’s Confidential Information; (b) constitute any solicitation of business or create any obligation except as expressly set forth herein; (c) create any relationship, commitment, or agreement with respect to any product, service, or prospective business arrangement; or (d) constitute any representation or warranty of any kind.

 

7. NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF ITS CONFIDENTIAL INFORMATION. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”.

 

8. This Agreement may be terminated by either party at any time upon prior written notice.

 

9. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous written and oral agreements or understandings relating thereto. This Agreement may not be assigned, amended, or modified except by a written agreement signed by both parties. No failure or delay by either party in exercising any right under this Agreement shall operate as a waiver of that right or any other right. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect. This Agreement shall be governed by, and construed in accordance with, the laws of the State of _____________________ [state], without regard to its conflicts of laws rules. Any action arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in _____________________, _____________________ [city, state], and each party irrevocably submits to the exclusive jurisdiction of such courts and waives any objection based on improper venue or forum non conveniens. Each party acknowledges that a breach of this Agreement may cause irreparable harm for which monetary damages may be an inadequate remedy, and that the Discloser shall be entitled to seek injunctive relief and specific performance, in addition to any other remedies available at law or in equity. This Agreement is executed in the English language, which shall control in all respects.

 

10. Any notice or communication under this Agreement must be given by email to the applicable email address set forth below, with a copy sent concurrently by Certified U.S. Mail, postage prepaid, to the physical address set forth below. A copy must also be sent to such party’s General Counsel, but only if such party has provided General Counsel contact information in this Agreement or by later notice given in accordance with this Section. Either party may change its email address, physical address, or General Counsel contact information for notice purposes by giving notice under this Section. Any notice or communication given in accordance with this Section shall be deemed received when sent by email and mailed as required above. Any notice given by any other means shall be deemed received only upon actual receipt by the intended recipient.

 

11. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall comprise a single instrument. A signature by facsimile or a .pdf file via email shall be deemed an original.

 

12. The obligations of Recipient under Section 3 with respect to Confidential Information disclosed during the Term shall survive the expiration or termination of this Agreement for five (5) years from disclosure of such Confidential Information; provided, however, that, with respect to any Confidential Information constituting a trade secret under applicable law, such obligations shall survive for so long as such Confidential Information remains a trade secret under applicable law. Sections 4, 5, 7, 8, and 9, and Section 3 solely to the extent set forth in this Section 12, shall survive expiration or termination of this Agreement.

 

IN WITNESS WHEREOF, the parties, by their duly authorized representatives, execute and deliver this Agreement as of the Effective Date.