Non-Disclosure Agreement (NDA) Template

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Non-Disclosure Agreement

 

This Confidentiality and Non-Disclosure Agreement (the "Agreement") is entered into on the date of ______________________________ and is by and between: Party 1, with a mailing address of ____________________________________________________________ (“Party 1”); and Party 2, with a mailing address of ____________________________________________________________ (“Party 2”) For the purpose of preventing the unauthorized disclosure of Confidential Information as defined herein. The parties agree to enter into a confidential relationship concerning the disclosure of certain proprietary and confidential information ("Confidential Information").

(The Party disclosing the Confidential Information shall be known as the Disclosing Party and the Party receiving the Confidential Information shall be known as the Receiving Party)

 

  1. Definition of Confidential Information. For purposes of this Agreement, "Confidential Information" shall mean all information and documents disclosed or submitted, orally, in writing, or by any other media (whether designated as confidential or not), by the Disclosing Party, either directly or indirectly (including through its group companies or agents), to the Receiving Party or any of its affiliated corporations or any of its authorized employees, officers or directors, and such information and documents includes without limitation:

(a) the terms of any agreement between the Disclosing Party and the Receiving Party;

(b) the fact that discussions are taking place between the Parties;

(c) all technical and business information, whether written, oral or graphic, including without limitation:

- financial plans and records, ideas, business plans and strategies, relationships with third parties, information relating to suppliers, founders, employees, and affiliates, business channels data, material, products;

- technical data, know-how, research, formulae, processes, methods, technology, IT systems, computer software programs and descriptions of functions and features of the software, source code, computer hardware designs, techniques;

- present and proposed products, trade secrets, designs, drawings, trademarks, patents, prototypes, samples, products, product plans, specifications, manuals, equipment, engineering, unpublished patent applications, research-in-progress, work-in-progress, prototypes;

- advertising programs, planning and merchandising strategies, marketing, pricing, sales, marketing information, facilities, services, customers, customer lists and information or other unpublished information related to customers, marketing plans, market development, inventions, financial information, negotiations, discussion, ideas, manufacturing techniques, and the like;

- information which is generated by the Receiving Party in connection with the purpose for which the confidential information is received under this Agreement or otherwise.

 

Without limiting the above, Confidential Information shall also include information that the Receiving Party knows or reasonably should know under the circumstances surrounding its disclosure, is confidential to the Disclosing Party.  

  1. Exclusions from Confidential Information. Receiving Party's obligations under this Agreement do not extend to information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party; (b) discovered or created by the Receiving Party may disclose the Confidential Information in accordance with governmental orders, including judicial notices, provided that Receiving Party gives Disclosing Party reasonable notice and Receiving Party agrees to comply with applicable protective orders or their equivalents. Receiving Party shall take all reasonable security precautions which Receiving Party would use to protect its own Confidential Information. Confidential Information may be disclosed only to the Receiving Party's employees or consultants on an as-needed and need-to-know basis. Any employee, consultant, parent, subsidiary, affiliate or other related party of the Receiving Party that is permitted to access the Confidential Information shall be instructed to maintain confidentiality of such information. Such related parties permitted to access the Confidential Information shall not be permitted to make unauthorized copies of any tangible manifestations of such information. The Receiving Party must keep and use written agreements with any and all related parties that have access to the Confidential Information to maintain compliance with the terms of this Agreement. Confidential Information may be disclosed pursuant to the Parties' business relationship or as provided hereunder.

Receiving Party before disclosure by Disclosing Party; (c) learned by the Receiving Party, on a non-confidential basis,  other than from the Disclosing Party or Disclosing Party's representatives; (d) independently developed by the Receiving Party or any of its Representatives or (e) is disclosed by Receiving Party with Disclosing Party's prior written approval.

 

  1. Obligations of Receiving Party. The Receiving Party acknowledges and agrees that the Confidential Information has been developed or obtained by the Disclosing Party by the investment of a significant amount of time, effort and/or expense and the Confidential Information is a valuable, special, and unique asset of the Disclosing Party and needs to be protected from improper disclosure.

The Second Party will use Confidential Information of the First Party solely for the purpose as specified below:

______________________

and shall keep it secure and confidential, and will not, except as outlined in Clause 2 (Exclusions), disclose any of the First Party's Confidential Information in any manner whatsoever.

The First Party will use Confidential Information of the Second Party solely for the purpose as specified below:

______________________

and shall keep it secure and confidential, and will not, except as outlined in Clause (Exclusions), disclose any of the Second Party's Confidential Information in any manner whatsoever.

In consideration of the opportunity granted to the Receiving Party to enter into the Proposed Transaction with the Disclosing Party, the Receiving Party hereby agrees as follows:

  1. a) To hold the Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its confidential materials);
  2. b) Not to divulge any such Confidential Information or any information derived therefrom to any third person unless prior written consent is obtained from the Disclosing Party;
  3. c) Not to use the Confidential Information, at any time, directly or indirectly, to procure a commercial advantage over, or do anything in any manner whatsoever, which is detrimental to the business or activities of the Disclosing Party, any of its affiliated companies or any of its directors and employees;
  4. d) Not to copy or reverse engineer any such Confidential Information;
  5. e) Not to use whether directly or indirectly or turn to its advantage in any way or profit from the use of the Confidential Information or any part thereof at any time; and
  6. f) To use the Confidential Information only for the purpose as specified above and in accordance with the terms of this Agreement.
  7. Term and Duration. The obligations of the Receiving Party in respect of confidentiality as provided above shall commence from the Effective Date and the Receiving Party shall solely be responsible for compliance by such representatives with the foregoing obligations of confidentiality. The Agreement shall be effective as of the date set forth at the bottom of the document and remain in full force and effect for the following time period: ___________ (“Term”). The obligations under this Agreement shall subsist throughout the Term of this Agreement and shall thereafter continue for a period of ___________ after the expiry of or earlier termination of this Agreement.

 

 

  1. Independent Parties. Nothing contained in this Agreement shall be deemed to constitute  a partnership or joint venture between the Parties or make one party the agent or legal representative of the other party for any purpose.

 

  1. Severability. If a court finds any provision of this Agreement invalid, illegal or unenforceable, .

 

  1. Entire Agreement. This Agreement constitutes the entire agreement and expresses the complete understanding of the parties with respect to the subject matter hereof and supersedes any and all prior negotiations, correspondence, proposals, agreements, representations, and understandings.

 

  1. No Waiver. None of the terms of this Agreement shall be deemed to have been waived by any act or acquiescence of either Party. Only an additional written agreement can constitute waiver of any of the terms of this Agreement between the Parties. No waiver of any term or provision of this Agreement shall constitute a waiver of any other term or provision or of the same provision on a future date. Failure of either Party to enforce any term of this Agreement shall not constitute waiver of such term or any other term.

 

  1. Amendment. This Agreement may not be changed, altered, amended or modified except in writing signed by authorized representatives of both the parties.

 

  1. Governing Law. This Agreement shall be governed in all respects by the laws of the state of __________ and any applicable federal law. Both Parties consent to jurisdiction under the state and federal courts within the State of __________.

 

  1. Ownership Maintained. Both Parties acknowledge and agree that any Confidential Information disclosed under this Agreement shall remain the exclusive property of the Disclosing Party. Nothing in this Agreement shall be construed as granting any rights in the Confidential Information to the Party receiving such information.

 

  1. Public Announcement. Neither Party will make any public announcement or disclosure about the existence of this Agreement or any of the terms herein without the prior written consent of the other Party.

 

  1. Counterparts. This Agreement shall be executed in counterparts, all of which shall constitute a single agreement. If the dates set forth at the end of this document are different, this Agreement shall be considered effective as of the date that both Parties have signed the Agreement, which may be the later date.  

 

  1. Rights and Remedies. Receiving Party hereby agrees to promptly notify Disclosing Party of any disclosure of any Confidential Information in violation of this Agreement, whether such disclosure was inadvertent or done with aforethought. Receiving Party also agrees to notify Disclosing Party of any legal matter or process

requiring disclosure of any Confidential Information before producing any such information. Receiving Party agrees to cooperate with Disclosing Party to assist in the collection and retention of Confidential Information after any unauthorized disclosure and to prevent further unauthorized use or dissemination of the Confidential Information. Receiving Party shall return any tangible documents or products, including originals, copies, summaries, or notes of the Confidential Information or certify destruction of the same at the Disclosing Party's sole and exclusive discretion. Receiving Party acknowledges that monetary damages may not be a sufficient remedy for any unauthorized disclosure of the Confidential Information and, as such, Disclosing Party may seek injunctive or equitable relief, without waiving any other rights or remedies, in a court of competent jurisdiction.

 

  1. Indemnity. The Receiving Party hereby agrees to indemnify and hold the Disclosing Party harmless from all damages, costs, attorney's fees, or other losses arising out of or relating to the breach of this Non-Disclosure Agreement by the Receiving Party.

 

Party 1 Signature: _____________________________________________________

Typed or Printed Name: ___________________________

Date: _______________

 

Party 2 Signature: _____________________________________________________

Typed or Printed Name: ___________________________

Date: _______________