This Non-Disclosure Agreement is made as of DATE by and between DISCLOSING COMPANY FULL NAME, a DISCLOSER STATE OF FORMATIONcorporation with its principal offices at DISCLOSER ADDRESS, (“Discloser") and RECEIVING COMPANY FULL NAME, a RECEIVER STATE OF FORMATION corporation with its principal offices at RECEIVER ADDRESS (“Receiver").
WHEREAS, (i) Discloser and Receiver desire to explore the possibility of a business arrangement, (ii) Discloser has what it considers to be valuable, proprietary and confidential matter or information, including without limitation, information relating to SPECIFIC TYPES OF CONFIDENTIAL INFORMATIONComplete with some specifics about the information that may be disclosed, such as the identities of Discloser’s customers, Discloser’s customers’ requirements, Discloser’s pricing., as well as other trade secrets, financial, business and/or technical information of Discloser ("Discloser’s Confidential Information") (iii) in the course of discussing such business arrangement, Discloser may disclose to Receiver certain of its Confidential Information for the express purpose of allowing Receiver to determine whether and how to proceed with the business arrangement, and Discloser is willing, in its sole discretion and on a confidential basis, to disclose to Receiver, its Confidential Information for such purposes, (iv) Receiver agrees that it shall receive Discloser’s Confidential Information only on the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of receipt of Discloser’s Confidential Information, Receiver agrees as follows:
1. Obligation of Nondisclosure. Receiver: (i) shall hold all of Discloser’s Confidential Information in absolute confidence, (ii) shall use Discloser’s Confidential Information only for the purpose of determining whether and how to proceed with the business arrangement with Discloser, (iii) shall not use Discloser’s Confidential Information in any way directly or indirectly detrimental to the interests of Discloser, (iv) shall not reproduce Discloser’s Confidential Information except to the extent absolutely necessary for preparing its evaluation, (v) shall restrict disclosure of Discloser’s Confidential Information to its employees and consultants with a need to know, and (vi) shall not disclose Discloser’s Confidential Information to any third party by any means, without prior written approval of Discloser.
2. Extent of Obligation. Receiver shall protect Discloser’s Confidential Information: (a) if it is clearly and conspicuously marked as “confidential” or with a similar designation; (b) if it is identified by Discloser as confidential and/or proprietary before, during, or promptly after presentation or communication; or (c) if it is disclosed in a manner in which Discloser reasonably communicated, or Receiver should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used.
3. Application to Others. Receiver acknowledges that each of its directors, officers, employees, consultants and affiliates to whom the Confidential Information is disclosed is a party to a written agreement requiring such person to maintain the non-disclosure obligations of Receiver.
ALTERNATIVE SECTION 3 (NOT TYPICALLY ACCEPTED): 3. Application to Others. Receiver agrees that it shall require any employee and consultant to whom Discloser’s Confidential Information is disclosed, in observance of Section 1, to certify in writing to Discloser, by signing and delivering to Discloser an original signed copy of the Statement of Adherence attached hereto as Attachment A, that such employee or consultant has read this Agreement and agrees to be bound by its provisions.
4. Exceptions. The restrictions on the use or disclosure of Discloser’s Confidential Information set forth in Section 1, shall not apply to any information: (i) which is independently derived by Receiver as evidenced by pre-existing collateral material, (ii) lawfully received by Receiver from another source having the legal right to so furnish such information or (iii) after such information has become generally available to the public without breach of this Agreement by Receiver or any of its respective employees, consultants, officers, directors or affiliates. At least thirty (30) days prior to making any disclosure of Discloser’s Confidential Information pursuant to a claim of exclusion in this Section 4, Receiver shall give Discloser written notice to that effect, together with documentary evidence to substantiate its claim. In any action alleging the unauthorized disclosure of Confidential Information, the burden shall be on Receiver to prove by clear and convincing evidence the entitlement to an exclusion in this Section 4.
5. No License Granted. No license toReceiver under any trademark, patent, copyright or other intellectual property right is either granted or implied by the disclosure of Discloser’s Confidential Information to Receiver.
6. No Representations. Discloser neither makes any representation nor assumes any liability for the accuracy, completeness or utility of any Confidential Information or the consequences arising out of the use thereof, the sole purpose of this Agreement being to protect the confidentiality and ownership of Discloser’s Confidential Information.
7. Legal Compulsion. Receiver’s obligations of non-disclosure and non-use do not apply to any Confidential Information Receiver is obligated to produce as a result of a court order or pursuant to government action, but only if Discloser has been given notice of and an opportunity to appear and thereby object to such disclosure, but is unsuccessful in preventing the disclosure, and then only to the extent that Receiver is legally required to disclose, as set forth in a written opinion of Receiver’s legal counsel, and provided that Receiver exercises its best efforts to obtain assurance that such disclosed information shall be accorded confidential treatment.
8. Records of Receipt. Receiver agrees to keep a record of Discloser’s Confidential Information received from Discloser and of the location(s) of such information. All Confidential Information delivered by Discloser to Receiver and all copies thereof, and all reports, memoranda, notes, abstracts, documents, disks and other writings prepared by Receiver and containing Discloser’s Confidential Information, whether in tangible or electronic form, shall remain the property of Discloser and shall be returned to Discloser (i) upon request by Discloser, (ii) upon termination of the discussions of a business arrangement between Discloser and Receiver, or (iii) upon Receiver’s determination that it no longer has a need for Discloser’s Confidential Information. In the alternative, withDiscloser’s written consent, Receiver will destroy all such documents and will delete all such computer files. Receiver will provide to Discloser a written certification of an officer of Receiver that Receiver has complied fully with this Section 8.
9. Forms of Relief. Receiver acknowledges that the unauthorized use or disclosure of Discloser’s Confidential Information will cause irreparable harm to Discloser, and accordingly, agrees that Discloser will have the right to obtain an immediate injunction, or other equitable relief against any violation or threatened violation of the covenants and undertakings of Receiver as specified in this Agreement, as well as all other rights and remedies provided by law, whether legal or equitable, including, but not limited to, damages, costs and attorney's fees.
10. Miscellaneous. Unless otherwise provided in this Agreement, all notices or demands by any party relating to this Agreement or any other agreement entered into in connection herewith shall be in writing and shall be personally delivered, sent by a recognized overnight delivery service, by certified mail, postage prepaid, return receipt requested, or by telefacsimile to the intended recipient, at the addresses and telefax numbers first set forth above. The parties hereto may change the address at which they are to receive notices hereunder, by notice in writing in the foregoing manner given to the others. This Agreement sets forth the entire agreement and understanding among the parties, and supersedes all prior discussions, negotiations and communications between them, with respect to its subject matter. No amendment or modification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Except to the extent otherwise agreed to in writing, no waiver by Discloser of any violation by Receiver of its covenants or undertakings under this Agreement shall be deemed to be a waiver of any subsequent violation of the same or any other covenants or undertaking; nor shall any forbearance by Discloser to seek a remedy for any violation by Receiver be deemed a waiver by Discloser of any of its rights and remedies with respect to that violation. This Agreement shall be binding upon the successors, and assigns of the parties hereto, provided, however, that neither this Agreement nor the rights given herein is assignable by Receiver without the prior written consent of Discloser; provided further, that no assignment by Receiver shall relieve Receiver of any liabilities and responsibilities under this Agreement. Receiver shall be responsible for the actions of its employees, consultants, officers, directors and affiliates. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. The undersigned each represent and warrant that they are legal representatives of and have full and complete authority to execute this Agreement on behalf of their respective parties. This Agreement shall be construed in accordance with the laws of the Commonwealth of Massachusetts which state shall govern for purposes of venue. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and signatures delivered by facsimile transmission, PDF, or other electronic means shall be binding as evidence of execution and acceptance of the terms hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as an instrument under seal as of the date first set forth above.
DISCLOSING COMPANY FULL NAME RECEIVING COMPANY FULL NAME
By: _________________________________ By: _________________________________
Name: ______________________________ Name: ______________________________
Title: ________________________________ Title: ________________________________
STATEMENT OF ADHERENCE TO NON-DISCLOSURE AGREEMENT
[ONLY IF YOU USE SECTION 3 ALTERNATIVE]
In consideration of the receipt of certain confidential information and for the purpose of exploring a business arrangement relating to such information, the undersigned hereby agrees that he or she has read the Mutual Nondisclosure Agreement dated as of DATE between DISCLOSING COMPANY FULL NAME and RECEIVING COMPANY FULL NAME (the "Agreement") and that he or she understands the Agreement and hereby agrees to be bound by the terms thereof.
Executed as an instrument under seal as of this ____ day of _______________.
[Receiver of Confidential Information]
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