Non-Disclosure Agreement

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Non-Disclosure Agreement

  • Identifies the parties to the agreement.
  • Defines what is confidential, i.e. the information to be held confidential. Modern NDAs typically include a laundry-list of items covered by the NDA, including unpublished patent applications, know-how, schema, financial information, verbal representations, customer lists, vendor lists, business practices/strategies, etc;
  • Identifies exclusions from what must be kept confidential. Typically, the restrictions on the disclosure or use of the confidential data will be invalid if:
    • the recipient had prior knowledge of the materials;
    • the recipient gained subsequent knowledge of the materials from another source;
    • the materials are generally available to the public, or;
    • the materials are subject to a subpoena. A subpoena typically overrides a contract of any sort.
  • Outlines provisions restricting the transfer of data in violation of national security;
  • Establishes the term (in years) of the confidentiality, i.e. the time period agreed upon to enforce the NDA;
  • Establishes the term (in years) the agreement is binding;
  • Grants permission to obtain ex-parte injunctive relief;
  • Identifies obligations of the recipient regarding the confidential information, typically including some version of the following obligations:
    • to use the information only for enumerated purposes;
    • to disclose it only to persons who need to know the information for those purposes;
    • to use appropriate efforts (not less than reasonable efforts) to keep the information secure. Reasonable efforts is often defined as a standard of care relating to confidential information that is no less rigorous than that which the recipient uses to keep their own similar information secure, and;
    • to ensure that anyone to whom the information is disclosed further abides by obligations restricting use, restricting disclosure, and ensuring security at least as protective as the agreement.
  • Identifies types of permissible disclosure, such as those required by law or court order

NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT

This Non-Disclosure and Confidentiality Agreement (this “Agreement”) is made and entered into as of the date written below by and between (“Company”)

and _________________________ (“Recipient”).

RECITALS

WHEREAS, Company desires to disclose to Recipient, and Recipient desires to receive from Company, certain information that Company considers confidential; and

WHEREAS, Recipient is willing to receive such information subject to the terms and conditions set forth in this Agreement;

NOW THEREFORE, in consideration of the foregoing premises, which are incorporated in this Agreement, and the mutual promises hereinafter contained, the parties hereto agree as follows:

AGREEMENT

  1. Definition of Confidential Information and Exclusions.
    1. “Confidential Information” means nonpublic information that Company designates as being confidential to Recipient or which, under the circumstances surrounding disclosure ought to be treated as confidential by Recipient.   “Confidential Information” includes, without limitation, information in tangible or intangible form relating to and/or including the marketing or promotion of any Company product or service, Company’s business policies or practices, and information received from others that Company is obligated to treat as confidential. Except as otherwise indicated in this Agreement, the term “Company” also includes all Affiliates of Company. An “Affiliate” means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, control, are controlled by, or are under common control with the Company.
    2. Confidential Information shall not include any information, however designated, that:
        1. is or subsequently becomes publicly available without Recipient’s breach of any obligation owed Company;
        2. became known to Recipient prior to Company’s disclosure of such information to Recipient pursuant to the terms of this Agreement;
        3. became known to Recipient from a source other than Company other than by the breach of an obligation of confidentiality owed to Company; or
        4. is independently developed by Recipient.

 

    1. Obligations Regarding Confidential Information
      1. Recipient shall:
        1. Refrain from disclosing any Confidential Information of Company to third parties for three (3) years following the date that Company first discloses such Confidential Information to Recipient;
        2. Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care, to keep confidential the Confidential Information of Company; and
        3. Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of Company except in pursuance of Recipient’s business relationship with Company, and only as otherwise provided hereunder.
      2. Recipient may disclose Confidential Information of Company in accordance with a judicial or other governmental order, provided that Recipient either (i) gives     Company reasonable notice prior to such disclosure to allow Company a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.
      3. Recipient may disclose Confidential Information only to Recipient’s employees and consultants on a need-to-know basis.   Recipient will have executed or shall execute appropriate written agreements with third parties sufficient to enable Recipient to enforce all the provisions of this Agreement.
      4. Recipient shall notify Company immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by Recipient and its employees and consultants, and will cooperate with Company in every reasonable way to help Company regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.
      5. Recipient shall, at Company’s request, return all originals, copies, reproductions and summaries of Confidential Information and all other tangible materials and devices provided to Recipient as Confidential Information, or at Company’s option, certify destruction of the same.

 

  1. RemediesThe parties acknowledge that unauthorized disclosure of the ConfidentialInformation would result in immediate and irreparable harm to Company, and that monetary damages may not be a sufficient remedy. Accordingly, the Company shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
  2. Miscellaneous
    1. All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient, Company does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein.   Company reserves without prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade secrets except as otherwise provided herein.
    2. The terms of confidentiality under this Agreement shall not be construed to limit either Company or Recipient’s right to independently develop or acquire products without use of the Confidential Information. Further, Recipient shall be free to use for any purpose the residuals resulting from access to or work with the Confidential Information of Company, provided that Recipient shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term “residuals” means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein. Recipient shall not have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not be deemed to grant to Recipient a license under Company’s copyrights or patents.
    3. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified except by a written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Company, Recipient, their agents, or employees, but only by an instrument in writing signed by an authorized agent of Company and Recipient. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.
    4. If either Company or Recipient employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees.
    5. This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part, without the prior written approval of the other party. Any attempted assignment in violation of this section shall be void.
    6. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
    7. This Agreement shall be governed by the laws of the state in which the Company resides, without reference to its conflict of laws principles, and the parties submit to the exclusive and irrevocable jurisdiction of the state and federal courts in the county where the Company resides.
    8. Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections of this Agreement relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the Agreement shall survive any such termination. The parties hereto agree that all Confidential Information exchanged shall be promptly returned to Company upon termination of this Agreement or following a written request by Company for return of its Confidential Information.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date written below.

COMPANY RECIPIENT
By: By:
Name: Name:
Title: Title:
Date: Date: