MUTUAL NON-DISCLOSURE AGREEMENT (NDA)

This Nondisclosure Agreement or ("Agreement") has been entered into on the date of
______________________________ and is by and between:
Party Disclosing Information: ______________________________ with a mailing address
of ____________________________________________________________ (“Disclosing
Party”).
Party Receiving Information: ______________________________ with a mailing address
of ____________________________________________________________ (“Receiving
Party”).
For the purpose of preventing the unauthorized disclosure of Confidential Information as
defined below. The parties agree to enter into a confidential relationship, upon the execution
of this agreement, concerning the disclosure of certain proprietary and confidential
information ("Confidential Information").
1. Definition of Confidential Information. For purposes of this Agreement, "Confidential
Information" shall include all information or material furnished by Disclosing Party or its
Representatives, whether orally, in writing, electronically or in tangible form, or that has or
could have commercial value or other utility in the business in which Disclosing Party is
engaged. The Confidential Information shall be identified as confidential or proprietary at the
time of disclosure by the Disclosing Party or otherwise disclosed in a manner such that a
reasonable person would understand its confidential nature, including but not limited to,
information relating to:
(a) the business plans or operations of the Disclosing Party;
(b) the research and development or investigations of the Disclosing Party;
(c) the business of any customer or partner of the Disclosing Party;
(d) Disclosing Party’s properties, employees, finances, operations;
(e) any information about or concerning any third party (which information was provided to
the Disclosing Party subject to an applicable confidentiality obligation to such third party);
(f) software and related documentation (“Disclosing Party’s Software”) including the
following information regarding Disclosing Party’s Software: (i) computer software (object
and source codes), programming techniques and programming concepts, methods of
processing, system designs embodied in Disclosing Party’s Software; and (ii) discoveries,
inventions, concepts, designs, flow charts, documentation, product specifications, application
program interface specifications, techniques and processes relating to Disclosing Party’s
Software; and
(g) product offerings, content partners, product pricing, product availability, technical
drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets,
know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts
and strategies.
“Confidential Information” shall be deemed to include all notes, analyses, compilations,
studies, interpretations or other documents prepared by the Receiving Party or its
Representatives which contain or are based upon, in whole or in part, the information
furnished to the receiving party or its Representatives pursuant hereto. If Confidential
Information is in written form, the Disclosing Party shall label or stamp the materials with the
word "Confidential" or some similar warning. Where the Confidential Information has not
been reduced to written or other tangible form at the time of disclosure, and such disclosure is
made orally or visually, the Disclosing Party agrees to identify it as confidential or
proprietary at the time of disclosure.
2. 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 before disclosure by Disclosing Party; (c)
learned by the Receiving Party through legitimate means other than from the Disclosing Party
or Disclosing Party's representatives; or (d) is disclosed by Receiving Party with Disclosing
Party's prior written approval.
3. Obligations of Receiving Party. Confidential Information shall not be reproduced in any
form except as required to accomplish the intent of this Agreement. Any reproduction of any
Confidential Information of a Disclosing Party shall remain the property of the Disclosing
Party and shall contain any and all confidential or proprietary notices or legends which
appear on the original. The Receiving Party:
(a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly
confidential;
(b) shall not disclose or reveal any Confidential Information to any person other than its
Representatives who are actively and directly participating in the Evaluation or who
otherwise need to know the Confidential Information for the purpose of the Evaluation;
(c) shall not use Confidential Information for any purpose other than in connection with the
Evaluation. and
(d) shall not disclose to any person (other than those of its Representatives who are actively
and directly participating in the Evaluation or who otherwise need to know for the purpose of
the Evaluation) any information about the Evaluation, or the terms or conditions or any other
facts relating thereto, including, without limitation, the fact that discussions are taking place
with respect thereto or the status thereof, or the fact that Confidential Information has been
made available to the Receiving Party or its Representatives.
As used herein “reasonable steps” means those steps the Receiving Party takes to protect its
own similar proprietary and confidential information, which shall not be less than a
reasonable standard of care. As used herein. Receiving Party shall carefully restrict access to
Confidential Information to employees, contractors and third parties as is reasonably required
and shall require those persons to sign nondisclosure restrictions at least as protective as those
in this Agreement.
4. Time Periods. The nondisclosure provisions of this Agreement shall survive and remain in
effect in perpetuity and Receiving Party's duty to hold Confidential Information in confidence
shall remain in effect until the Confidential Information no longer qualifies as a trade secret
or until Disclosing Party sends Receiving Party written notice releasing Receiving Party from
this Agreement, whichever occurs first.
5. Return or Destruction of Confidential Information. The Receiving Party shall upon the
termination of this agreement or upon the request of Disclosing Party, immediately return or
destroy any and all records, notes, and other written, printed or tangible materials in its
possession pertaining to the Confidential Information, and shall continue to comply with all
other terms and conditions of confidentiality within the Agreement.
6. No Additional Agreement. Neither the holding of discussions not the exchange of
material or information shall be construed as an obligation of the Disclosing Party to enter
into any other agreement with Receiving Party, or prohibit the Disclosing Party from
providing same or similar information to other parties and entering into agreement with other
parties. The Disclosing Party reserves the right, in its sole discretion, to reject any and all
proposals made by the Receiving Party or its Representatives with regard to a transaction
between Receiving Party or its Representatives and to terminate discussions and negotiations
with Receiving Party at any time. The Receiving Party agrees not to use the Business Plan or
Confidential Information as a basis upon which to develop or have a third party develop a
competing or similar plan or undertaking.
7. Indemnify. Receiving Party shall understand and acknowledge that any breach of this
Agreement could result in damages, losses, costs or expenses to the Disclosing Party and
agrees to keep the Disclosing Party indemnified in respect to any and all claims which arise
out of or in connection with a violation. Receiving Part shall understand that any use or
disclosure regarding the Business Plan or Confidential Information could cause the
Disclosing Party irreparable harm, the amount of which may be difficult to ascertain, and
therefore agrees that the Disclosing Party shall have the right to apply to a court of competent
jurisdiction for specific performance or order restraining and enjoining any such further
disclosure or breach and for such other relief as Disclosing Party deems appropriate, in
addition to the remedies otherwise available at law or in equity.
8. Prevailing Party. In a dispute arising out of or related to this Agreement, the prevailing
party shall have the right to collect reasonable attorney fees, costs, and other legal
expenditures from the other party.
6. Relationships. Nothing contained in this Agreement shall be deemed to constitute either
party a partner, joint venture or employee of the other party for any purpose.
7. Severability. If a court finds any provision of this Agreement invalid or unenforceable, the
remainder of this Agreement shall be interpreted so as best to affect the intent of the parties.
7. Integration. This Agreement expresses the complete understanding of the parties with
respect to the subject matter and supersedes all prior proposals, agreements, representations,
and understandings. This Agreement may not be amended except in writing signed by both
parties.
8. Waiver. The failure to exercise any right provided in this Agreement shall not be a waiver
of prior or subsequent rights.
9. Notice of Immunity. In the event that the Receiving Party or any of its Representatives are
requested pursuant to, or required by, applicable law or regulation or by legal process to
disclose any Confidential Information or any other information concerning the Disclosing
Party or the Evaluation, unless prohibited by law, the Receiving Party shall provide the
Disclosing Party with prompt notice of such request or requirement in order to enable the
Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult
with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or
narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in
part, with the terms of this Agreement. In the event that such protective order or other remedy
is not obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in
part, with the terms of this Agreement, the Receiving Party or its Representative shall
disclose only that portion of the Confidential Information which is legally required to be
disclosed and to require that all Confidential Information that is so disclosed will be accorded
confidential treatment.
Successors and Assigns. This Agreement and each party's obligations shall be binding on the
representatives, assigns and successors of such party and shall inure to the benefit of the
assigns and successors of such party; provided, however, that the rights and obligations of
Recipients hereunder are not assignable.
Each party has signed this Agreement through its authorized representative.
DISCLOSING PARTY
Signature: _____________________________________________________
Typed or Printed Name: ___________________________ Date: _______________
RECEIVING PARTY
Signature: _____________________________________________________
Typed or Printed Name: ___________________________ Date: ______________