Mutual Non-Disclosure Agreement This Non-Disclosure Agreement (the “Agreement”) dated [_________] is made by and between ____________, Inc. a Delaware corporation (including all subsidiaries and affiliates), having its place of business at _________________________, and _________ [ID # _________ or a _________ corporation, having its place of business at [_________][Please insert the correct details for individual or entity].With respect to any and all information disclosed by either party (the "Disclosing Party") to the other party (the "Recipient"), the parties wish to ensure due protection of such information. 1. Background. The parties intend to engage in discussions concerning potential business or commercial relations between the parties (the “Project”), involving, among others, certain technology and know-how of the Disclosing Party. It is anticipated that the Project will require the disclosure by the Disclosing Party of certain valuable proprietary information to the Recipient, to be used only for purposes of the foregoing Project and under the terms and conditions of this Agreement. 2. Confidential Information. The Recipient acknowledges that it has received and/or may receive information of a confidential and proprietary nature regarding the activities and business of the Disclosing Party, its subsidiaries and/or affiliates. Any and all information, materials and data disclosed or supplied by the Disclosing Party to the Recipient in oral, written, visual, electronic or any form whatsoever shall be considered “Confidential Information” for purposes of this Agreement. Confidential Information shall include, but not be limited to, all methods, processes, procedures, strategies, plans and personnel, all discoveries, ideas, inventions, patents, patent applications, artwork, concepts, formulae, algorithmic, source codes, object codes, computer programs, software, know-how, trade secrets, techniques, designs, blueprints, specifications and other types of intellectual property, all sales programs and goals, customer and client lists, and all other matters relating to finances, business affairs, operating data and costs. In particular, the Disclosing Party may also disclose information furnished to it by third parties, such as licensors or prospect licensors and/or related technologies and know-how, which, for purposes of this Agreement, shall all be deemed as Confidential Information belonging to the Disclosing Party. 3. Ownership of Confidential Information. All Confidential Information and all right, title and interest therein is and shall remain at all times, the property of the Disclosing Party and no use of Confidential Information is permitted except as otherwise expressly provided in this Agreement and only in the manner and to the extent necessary for the purposes of the Project. 4. Term and Effect. All of Disclosing Party's rights hereunder and all of Recipient's obligations and undertakings hereunder shall be in full effect for the entire term of this Agreement and for an unlimited period of time after its termination, cancellation or expiration for any reason whatsoever, so long as any information disclosed by the Disclosing Party to Recipient under this Agreement remains Confidential Information of Disclosing Party. 5. Use of Confidential Information. The Recipient shall in any and all time: (i) treat and maintain all Confidential Information in the strictest confidence, using the same degree of care that the Recipient uses to protect its own Confidential Information, and at least a reasonable degree of care; (ii) Not disclose any Confidential Information to any third party without the prior written consent of the Disclosing Party; (iii) Not disclose any Confidential Information to any of its employees, consultants, agents or other representatives except to those who have a “need to know” and must be directly involved in the use of Confidential Information for the purposes of the Project; (iv) Be responsible for the compliance of those employees, consultants, agents or other representatives who have a “need to know” with the provisions of this Agreement; Without derogating from the aforesaid, the Recipient shall bear full responsibility for any harm caused to the Disclosing Party by disclosure to any of its employees, consultants, agents or other representatives; (v) Not disassemble, reverse engineer or make any copies of Confidential Information (in any medium whatsoever) without the prior written consent of the Disclosing Party; (vi) To the extent that any portion of the Confidential Information contains proprietary and confidential notices or legends, the Recipient shall not remove such notices or legends, and shall produce the same on each and every copy of the Confidential Information produced by it.
2 6. Exceptions. This Agreement shall not apply to specific information which: (i) is or becomes the public domain, without violation of this Agreement; (ii) is rightfully known to the Recipient without any limitation on use or disclosure prior to receipt of the same from the disclosing party, provided that, immediately upon disclosure the Recipient brought this fact to the attention of the Disclosing Party and demonstrated in writing that such information was in fact so known to the Recipient; (iii) is developed independently by the Recipient and written documentation is available to prove that such development predated this Agreement; (iv) is legally transmitted or disclosed to Recipient by a third party. 7. Return of Confidential Information. Upon Disclosing Party's first demand, the Recipient shall return to the Disclosing Party all Confidential Information, including all records, products and samples received, and any copies thereof, as well as any notes, memoranda or other writings or documentation which contain or pertain to the Confidential Information or any portion thereof, whether in its possession or under its control, and shall erase all electronic records thereof, and shall so certify to the Disclosing Party in writing. 8. No License. The disclosure to the Recipient of Confidential Information or its use hereunder or nothing else hereunder may be construed as granting to the Recipient any right, warranty or license by implication or otherwise under any patent, copyright, know-how or design rights, or other form of protection of industrial or intellectual property, or as creating any obligation on the part of the Disclosing Party to enter into any business relationship whatsoever or to offer for sale any service or product other than the right to use Confidential Information strictly in accordance with the terms of this Agreement. 9. No Representations. The disclosure of Confidential Information hereunder shall not be construed as placing any obligation on Disclosing Party to disclose any particular information to the Recipient, or to enter into a business relationship with the Recipient. THE CONFIDENTIAL INFORMATION IS PROVIDED TO RECIPIENT AS IS, WITHOUT GIVING ANY REPRESENTATION OR WARRANTY WITH RESPECT THERETO. 10. Injunctive Relief. The Recipient recognizes, acknowledges and agrees that any violation of this Agreement may cause immediate and irreparable harm to the Disclosing Party which monetary damages cannot adequately remedy and that the Disclosing Party would not have an adequate remedy at law in the event of actual or threatened violation by the Recipient of this Agreement. Without prejudice to rights and remedies according to the Rule of Law, Recipient therefore agrees that injunctive relief or an appropriate decree of specific performance or any other appropriate equitable relief may be sought against it, in order to remedy, or to prevent a violation hereof. 11. Limited Relationship. This Agreement does not in any way establish any principal/agent, employee/employer and/or ownership relationship between the parties hereto. This Agreement shall not be construed as a teaming, joint venture or other such arrangement. 12. Entire Agreement. This Agreement consists of the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior written or oral agreements with respect hereto. This Agreement may not be modified except by written instrument signed by a duly authorized representative of each party hereto. 13. Survival. All Non-disclosure obligations shall survive termination of the Project and of this Agreement and shall remain in full force and effect following such termination. In the event that it shall be determined under any applicable law that a certain provision set forth in this Agreement is invalid or unenforceable, such determination shall not affect the remaining provisions of this Agreement. 14. Governing Law. This Agreement shall be governed by the laws of the State of ________, US and any dispute arising out of or in connection with this Agreement is hereby submitted to the sole and exclusive jurisdiction of the competent courts in __________ County, __________, US 15. Assignment. Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other party, and such assignment would be null and void.
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IN WITNESS THEREOF THE PARTIES DULY EXECUTED THIS AGREEMENT AS OF THE _________ DAY OF _________________, 2012.
__________, Inc. By:
______________________
By:
______________________
Name: ______________________
Name: ______________________
Title:
Title:
______________________
______________________
