This agreement is entered into on Agreement Date (the Agreement Date) between the parties that sign this document. The Disclosing Party is the party disclosing any Confidential Information. The Recipient is the party receiving Confidential Information. This agreement applies when any party that signs this document (any Signer) is the Disclosing Party and any of the other parties are the Recipient(s).
The Recipient acknowledges that the Confidential Information is proprietary to the Disclosing Party, and that the Disclosing Party regards all of its Confidential Information as secret. All Signers attest they have witnessed and agree to the provisions of this document.
A. Definition of Confidential Information.
- For purposes of this Agreement, Confidential Information means any data or information, in any form, that is proprietary to the Disclosing Party and not generally known to the public and is received by Recipient before Interaction Period [a number of years after the Agreement Date or a conditional date]. Confidential Information need not be novel, patentable, copyrightable, nor constitute a trade secret. This includes, but is not limited to:
- any marketing strategies, plans, financial information, projections, operations, sales estimates or performance results relating to any business activities of the Disclosing Party or its affiliates,
- plans for products or services, and customer or supplier lists,
- any mathematical, scientific or technical information,
- any idea, design, process, improvement, report, know-how, work-in-progress, specification, software, source code, software resource or database.
- Confidential Information shall not include information which:
- has or becomes rightfully known to the Recipient from a third-party source that, after diligent inquiry by the Recipient, is not known to be under an obligation to Disclosing Party to maintain confidentiality,
- has or becomes independently developed by associates of the Recipient without reference or access to any Confidential Information, or
- is required to be disclosed by law or regulation.
B. Disclosure of Confidential Information.
The Recipient will:
- Limit disclosure of any Confidential Information to
- its representatives or associates (collectively the Representatives) who have a need to know such Confidential Information in connection with the current or potential business relationship between the parties to which this agreement relates, and only for that purpose, and
- those persons to which a legal governmental order (including subpoenas) requires to be disclosed, provided that (to the extent legal and practicable) the Recipient promptly notifies the Disclosing Party in writing of such demand for disclosure so that the Disclosing Party has time to seek to contest the order, make an other appropriate remedy to preserve the confidentiality of the Confidential Information, or disclose the Confidential Information in a manner acceptable to the Disclosing Party. The Recipient agrees that it shall reasonably cooperate with efforts by the Disclosing Party to maximize the confidentiality of the information both required or not required by the order (including by contesting the governmental order).
- Advise its Representatives of the proprietary nature of the Confidential Information and of the obligations set forth in this Agreement and require such Representatives to keep the Confidential Information confidential.
- Shall keep all Confidential Information strictly confidential using a reasonable degree of care not less than the degree of care used by it in safeguarding its own Confidential Information. Each party shall be responsible for any breach of this Agreement by any of their respective Representatives.
D. Return of Confidential Information.
Recipient shall, immediately upon any of the following events, return all tangible materials embodying the Confidential Information, and either return or destroy all information or materials based on or deriving thereof:
- the completion or termination of the dealings between the parties,
- the termination of this Agreement,
- at such time as the Disclosing Party may so request,
provided however that the Recipient may retain such of its documents as is necessary to enable it to comply with its document retention policies. Any digital data must be reasonably nonrecoverable to be considered "destroyed".
E. Notice of Breach.
Recipient shall notify the Disclosing Party immediately upon discovery of any breach of this Agreement by Recipient or its Representatives, and will cooperate with efforts by the Disclosing Party to regain possession of Confidential Information and prevent its further unauthorized use.
Both parties acknowledge that the unauthorized dissemination of the Confidential Information would diminish the value of such information in a way that may be impossible to calculate. Therefore, both parties hereby agree that the Disclosing Party shall be entitled to injunctive relief, litigation, and/or similar relief in the case that the agreement is breached, and that the prevailing party is entitled to recover its costs and fees, including reasonable attorneys’ fees, incurred in obtaining any such remedies.
- Each party warrants that it has the right to make all promises made by signing this Agreement.
- No warranty as to the accuracy or completeness of the Confidential Information is being made by either party.
- The Disclosing Party shall not have any liability to the Recipient or the Recipient's Representatives resulting from any use of the Confidential Information.
- This Agreement can only be modified or by a written amendment signed by both parties.
- Title to the Confidential Information will remain solely in the Disclosing Party.
- All use of Confidential Information by the Recipient shall be for the benefit of the Disclosing Party and any modifications and improvements thereof by the Recipient shall be the sole property of the Disclosing Party.
- This Agreement shall be governed in accordance with the laws of Jurisdiction (the State) and any legal action take place in courts within the State.
- This agreement supersedes all prior unsigned agreements concerning the subject matter herein.
- Any failure by either party to enforce any provision of this Agreement will not constitute a waiver of its right to subsequently enforce any provision of this agreement.
- If any provision in this agreement is found by a court of competent jurisdiction to be unenforceable, such provision will be modified to include as much of its nature and scope as will render it enforceable.
- Nothing contained herein is intended to contradict Federal Rule of Evidence 408.