MUTUAL NONDISCLOSURE AGREEMENT

© 2011 LightwaveLaw.com

Included:
* Overview * Dos & Don’ts Checklist * Mutual Nondisclosure Agreement Instructions * Sample Mutual Nondisclosure Agreement

1. Overview Nondisclosure agreements (also called NDAs or confidentiality agreements) have become increasingly important for businesses of all sizes, serving as the first line of defense in protecting inventions, trade secrets, and hard work. These agreements are critical not only when confidential information has been wrongly divulged, but also when no disclosures have yet been made. At their core, nondisclosure agreements build relationships of trust between parties. These agreements are used when at least one person is sharing confidential information with someone else, and protect the immediate and future privacy of that disclosed information. Once signed, a nondisclosure agreement allows for open dialogue between parties, creating an environment in which information can be discussed freely and the true objectives of the meeting or relationship can be achieved (for example, a company may be created or a strategic partnership may be established). There are two key types of nondisclosure agreements: unilateral and mutual. Mutual nondisclosure agreements (like the agreement contained in this packet) should be used when both parties will be sharing confidential information, as when the parties are considering the creation of a partnership, joint venture, or merger. Unilateral nondisclosure agreements should be used when only one side will be sharing confidential information, as when one party is seeking funding for or investment in a company.

Mutual Nondisclosure Agreement

2. Dos & Don’ts Checklist Creating a nondisclosure agreement is the first of many steps in maintaining and protecting your confidential information. The following tips will provide additional guidance about protecting your business or personal interests:  Protecting confidential information should be the rule and not the exception. Get in the habit of using a nondisclosure agreement whenever there is a chance that sensitive information will be disclosed.  Instruct all of your company’s employees about the importance, security, and protection of confidential information. Wrongful disclosure can happen at any level of your organization.  Some business owners hesitate to use nondisclosure agreements, fearing they imply suspicion of or doubt about the other party. This is a mistake. Nondisclosure agreements are common in modern business, and most people won’t blink if asked to sign one. If someone does object, ask yourself if you truly want to be in business with that person.  Sign at least two copies of the agreement, one each for you and the other party to the agreement. Make sure there are as many originals as there are parties to the contract.  Keep the signed nondisclosure agreement in a safe place. An executed agreement is useless if it can’t be found.  Don’t rely on oral promises of confidentiality. They are hard to prove and are harder to enforce.  In addition to using a nondisclosure agreement, write “CONFIDENTIAL” in bold letters on any documents with confidential information. This will remind everyone of the nature of the information and of their obligation to protect it.  Review the enclosed agreement carefully. One size does not fit all.  If your agreement is complicated, do not use the enclosed form. Contact an attorney to help you draft a document that will meet your specific needs.

Mutual Nondisclosure Agreement

If a party is an individual. The numbers and letters below (for example. define the world of the agreement and offer key information about the parties.  Recitals. depending whether it’s useful for your arrangement). ADD INFORMATION: For companies. enter the state in which that organization was created. Make sure you change all colors back to “automatic” or “black” before printing your document. use a unilateral nondisclosure agreement and not the enclosed form. This is an essential part of the agreement.3. often referred to as recitals.  Section 1: Confidential Information. Please review the entire agreement before starting the step-by-step process. red is used to designate places where you need to make a selection among choices or to signal that the language in that color is optional (in other words. Identifies the document as a mutual nondisclosure agreement. If Confidential Information will be provided only by one party.” depending the occasion. Review this section very closely to ensure that it provides enough protection for each party and its confidential information. Purple is used to indicate that there is a drop-down menu of choices. explaining what each party’s Confidential Information is. Section 1 or Section 2(d)) correspond to provisions in the agreement. The first sentences after the introduction paragraph. both parties are subject to the same rules. Note that in the agreement. ADD INFORMATION: Provide the name of each party in capital letters.  Introduction of the Parties. Blue is used to indicate that you will need to add your own information to the document. Mutual Nondisclosure Agreement Instructions The following provision-by-provision instructions will help you understand the terms of your mutual nondisclosure agreement. both parties are disclosing information. it’s your choice whether or not you include it. Don’t get hung up on labels. choose “individual” and delete the space for state of organization. NOTE: Because this is a “mutual” nondisclosure agreement. If you don’t see your organizational type listed. If there are specific types of Mutual Nondisclosure Agreement . SELECT INFORMATION: Choose each party’s business type from the purple drop-down list. This means that either party can be a “Disclosing Party” or a “Receiving Party. feel free to enter it in the space provided.

OPTIONAL LANGUAGE: There is an optional provision that requires each person in each party to sign a confidentiality agreement before getting any Confidential Information. since it doesn’t give full notice of what is considered confidential.information you want protected (for example. However. ADD INFORMATION: Use the space to insert the number of days each party has to identify information that was spoken as Confidential Information covered by this agreement. and (2) a Receiving Party can give the information only to certain individuals in its own organization. add those as part of the list. if the information was disclosed so that Receiving Party could determine whether or not to make an investment. This means that even if a party makes its own charts or restates the data it receives. Mutual Nondisclosure Agreement . Note two important details: (1) a Receiving Party can use the information only for purposes intended by the Disclosing Party (for example. those charts and restatements are the other party’s Confidential Information. You can decide if this is a useful or practical addition to your agreement. (a) Confidentiality. development plans or funding research). Explains how a party will treat the other party’s Confidential Information once it is received. the information can be used only for that purpose). OPTIONAL LANGUAGE: The optional sentence protects a Disclosing Party if it mistakenly gives the other party Confidential Information that is not labeled as confidential. including this sentence ensures that neither party gives up rights to Confidential Information simply because it wasn’t labeled correctly.  Section 2: Obligation to Maintain Confidentiality. Some parties may resist this sentence. NOTE: Any documents that were created based on the Confidential Information are also Confidential Information. This may be unworkable if one or both parties are large corporations. and belong to the other party.

confidential information received by someone doesn’t always become less confidential over time. For example. The obligation lasts until either (i) the information becomes public knowledge. Indicates that neither party can try to find out information underlying the other party’s Confidential Information. WHY IS THIS OPTIONAL? There is some debate about whether a time limit on nondisclosure is required. a Receiving Party can’t just protect the program but find and disclose the code underlying it. without the Receiving Party doing anything (in other words. but many people will resist anything longer than five years. OPTIONAL SUBSECTION: The subsection called “Term” is optional. You should review the laws in your area. (c) Term. the “term” is how long the agreement will last and the parties will be required to act. There is an exception made for a Disclosing Party’s “trade secrets. In most contracts. Delete this clause if you don’t want to set a time limit on the confidentiality obligations. to determine whether or not you will need to set an absolute deadline. Each element comprising the Confidential Information is protected. Mutual Nondisclosure Agreement . In this agreement. You can extend the time limit beyond three years.(b) No Reverse Engineering. after all. and consider the specific person or company with which you are dealing. making it public) or (ii) three years from the date the agreement is signed. if the Confidential Information includes a software program.” which are required to be kept confidential for as long as they are not public knowledge. the “term” is the length of time that a Receiving Party must keep the Disclosing Party’s Confidential Information private. and puts a time limit on a Receiving Party’s responsibility to keep information private.

In other words. For information to be public is one thing. Explains that if a party asks. and business owners require it. Mutual Nondisclosure Agreement . the Receiving Party must tell the Disclosing Party immediately so the Disclosing Party can try to limit any damage. if the Receiving Party generated the same information without referencing what the Disclosing Party provided. (b) if the Receiving Party had already received the Confidential Information in a non-confidential way. OPTIONAL LANGUAGE: The optional word generally makes this exception harder for the Receiving Party. OPTIONAL LANGUAGE: The optional phrase “the Receiving Party demonstrates” makes a Receiving Party responsible for proving that one of these exceptions exists. If this is the case. it means it has been distributed over a larger number of people. the information was provided to the Receiving Party before the agreement was signed and when the information either was not considered confidential or was provided in a way implying it wasn’t. This exception is included because many financiers. and must destroy any Derivative Materials it has created. (c) if the Receiving Party is legally compelled to disclose the Confidential Information. investors. In other words. the other party will have to return Confidential Information. This section describes the situations in which a Receiving Party’s disclosure of the Confidential Information does not violate the agreement: (a) if the Confidential Information was made public by someone other than the Receiving Party.  Section 4: Return of Property. and (d) if the Confidential Information was independently developed by the Receiving Party without breaching the agreement. ADD INFORMATION: Enter the amount of time a Receiving Party has to comply with a Disclosing Party’s request to destroy Derivative Materials. Section 3: Exclusions. These are listed exceptions to the general rules of a nondisclosure agreement. For information to be generally publically available.

some parties may not want to include this. Residuals. This provides more flexibility for future business.. since it may be a slippery slope from what someone thinks is independently developed knowledge to what is actually Confidential Information. Restates that the Confidential Information is being shared between the parties for a specific business purpose only. the fact that two parties are in discussions could have an immediate ripple effect on peers and competitors. neither party receives ownership rights in the other party’s information received through this agreement. to use any information provided. In a small industry. This does not include the Confidential Information itself – instead. However. OPTIONAL SECTION: An optional section stating that neither party can make public announcements about their dealings. States that this agreement doesn’t oblige either party to enter any future agreement.ADD INFORMATION: Enter the amount of time a Receiving Party has to certify that it has destroyed the Derivative Materials after destroying them. In other words.  Section 5: No Publicity. If this does not apply to your business or industry. Keeping dealings private (or at least limiting any disclosure to something the parties agree on) will eliminate this chain reaction.e. Section 7: Future Products. the agreement just allows the parties to reveal information without that  Mutual Nondisclosure Agreement . things that aren’t written down and exist only in abstract) that have been suggested during the relationship. In other words. OPTIONAL SECTION: An optional section that gives each party the right to develop products and use information that it or its employees have learned in the course of dealings with the other party. feel free to delete this optional section.  Section 6: Ownership Rights.  Section 8: No Obligation. it means ideas or other “intangibles” (i. Feel free to delete this optional section if it does not suit your arrangement. allowing individuals to draw on experience and knowledge gained over the course of a business relationship. unless the other party consents in writing before an announcement. or to continue on in the agreement for any period of time.

A court may be reluctant to uphold a choice-of-law provision that is random. the forum choice should be reasonable. Attorneys’ Fees.  Section 10: Governing Law. but are not required to. (a) Choice of Law. this is required by law. In many areas. This is usually a state in which one or both parties live or do business.information becoming public – anything after that would need to be covered by a separate agreement. This subsection allows a party to seek equitable relief (in other words. a court order requiring a party to do or not so something) for any violation of the agreement. Explains that if the parties have to take legal action to resolve disagreements. or chosen to avoid a disadvantageous law. The forum is the location where the parties’ disputes will be resolved. accurate. NOTE: As with choice of law.  Section 9: No Warranty. NOTE: There should be some connection between the state you choose and the parties or their businesses. Equitable Relief. Indicates that each party’s information is being provided without any promise that it’s good. NOTE: This subsection is written so that the parties can bring suit in the county and state listed. This lets the parties to choose the state law that will be used to interpret the agreement. ADD INFORMATION: Choose the state whose laws will govern your agreement. ADD INFORMATION: Write the name of the state and county in which you or the other party can bring a lawsuit. The parties have agreed to the forum and so it may be easier for a party to sue there. the losing party must pay the prevailing party’s attorney fees. (c) Attorneys’ Fees. (d) Equitable Relief. (b) Choice of Forum. and have some connection to the parties or their businesses. make your additions or revisions are in capital letters. but they can still choose a different location. If you choose to modify this section. Note that this section is in ALL CAPS. This is often included Mutual Nondisclosure Agreement . or useful.

An amendment is a change to the terms of the agreement. An “assign” is a person or company that has had rights transferred to it. the second should be selected if they are companies. If either party tries to assign or delegate without getting the other party’s permission. Mutual Nondisclosure Agreement . For example. Without this provision. This prohibits one party from acting irrationally to restrict the other party’s rights. Coke® would seek both damages and an injunction barring further distribution of their protected information. A “delegation” is the transfer of obligations from one person or party to another. In all likelihood. that assignment or delegation will be void: in other words. neither party may assign or delegate unless the other party gives written consent before that assignment or delegation takes place. OPTIONAL LANGUAGE: The optional phrase states that a party can’t unreasonably refuse to give its consent to an assignment or delegation. In this agreement. if a former contractor of Coke® distributed the “secret formula. and signing through representatives. An “assignment” is the transfer of rights from one person or party to another. This section explains that permitted successors and assigns will have the same rights and responsibilities as the original parties to the agreement. Involuntary assignments (as when a company merges with another. or that unsigned emails also changed its terms. or dissolves in bankruptcy) are allowed. as when its Confidential Information has been made public knowledge.when monetary damages will not be enough to protect or repay a party. MAKE A SELECTION: The first option should be selected if the parties are individuals.  Section 12: Assignment and Delegation. This Section 11 states that the only way either party can change any terms is if that change is both (a) in writing and (b) signed by both parties.  Section 11: Amendments. The “assignment and delegation” section of a contract explains which parties can or can’t assign and delegate their rights and obligations. there will be no assignment or delegation and the rights and obligations of the parties will be the same as they were before. a party could argue that a conversation between the parties was an “oral amendment” of the document.” it would strike a serious blow against Coke® and its business. This provision limits only voluntary assignments. A “successor” is a person or company who takes over the role and responsibilities of an original person or company.  Section 13: Successors and Assigns.

If that Receiving Party doesn’t do this and the Disclosing Party doesn’t insist on it. and the like.much less the same room . executors. MAKE A SELECTION: If at least one of the parties is an individual. Lists the addresses to which all official or legal correspondence relating to the agreement should be sent. If at least one of the parties is a company. In such cases. Instead. General Counsel). but it is simple to explain: it says that even if the parties sign the agreement in different locations. include the optional word successors. if a state law is passed prohibiting faxed copies of signature pages. the agreement may terminate. leaving the rest of the agreement unchanged.  Mutual Nondisclosure Agreement . Section 15: Severability. ADD INFORMATION: Write in a mailing address and contact information for both the Disclosing Party and the Receiving Party. the purpose of the agreement is lost. A “waiver” occurs when one party does something that gives up a right that they have. For example. or use electronic devices to transmit signatures (like fax machines or computers). This will keep you from having to amend your agreement any time someone changes jobs. There is an exception in this section.For individuals. Electronic Signatures. if a law is passed stating that the kind of information being exchanged can’t be treated as confidential. it will not undo the entire agreement.  Section 17: Waiver. all of the separate pieces will be considered part of the same agreement. only the references to faxed copies of signature pages would be deleted. The title of this provision sounds complicated. For example. include the optional language about heirs. For example. even if one part is later invalidated. In a modern world where signing parties are often not in the same city . If an essential part of the agreement is invalidated. the agreement will probably be invalidated. This can take written form or can be some kind of action. the Disclosing Party is said to have “waived” its right to require this deadline.  Section 16: Notices. Section 4 states that a Receiving Party must destroy Derivative Material within a certain number of days after the Disclosing Party requests it. without making the agreement invalid.  Section 14: Counterparts. the equivalent of a successor or assign is someone like an heir or the executor of their will. You can include a person’s name or a reference to a position at your company (for example.this provision ensures that business can be transacted efficiently. Protects the terms of the agreement as a whole.

Section 19: Headings. However.    Mutual Nondisclosure Agreement . these headings are not part of the substance of the agreement. For example. if the parties had exchanged letters that contradicted provisions in the agreement. Because the parties may be signing at different times and in different locations. Section 21: Necessary Acts. the other party can insist on it if it’s needed to make the agreement effective. the inclusion of this provision will not prevent someone from arguing that they there are other agreements and promises that should be considered part of the agreement. OPTIONAL LANGUAGE: The language regarding “officers and directors” should be used only if at least one party is not an individual. Section 20: Effectiveness. they will need to create a written. the Disclosing Party has not waived its rights. a question may arise about when the agreement becomes effective. signed waiver or amend the agreement. Notes that the headings at the beginning of each section and subsection are provided to organize the document. those documents won’t be considered part of the agreement.  Signature Page. These labels are meant to help as you’re skimming the document or searching for a specific section. The parties’ agreement that the document they’re signing is “the agreement” about the issues involved. Note that this applies only to reasonable acts: a party will not be required to anything and everything possible to make the agreement work.This Section 17 states that the parties can only waive rights in writing. this section requires the parties to perform that action.” explaining that even if a party is not specifically required to sign a document or take some action by the agreement.  Section 18: Entire Agreement. Any interpretation of the clauses should not be based on the headings. This means that in the example just provided. This section clarifies that the agreement will be effective when the last party has signed and dated it. but it will provide you some protection from these claims. It did not make a written waiver– the waiver was the action that the Disclosing Party took. The optional word “commercially” takes this even further: an act will be required only if it is reasonable in the business word to expect that this will be done. This allows the parties to make an agreement that doesn’t list every possible act that will ever need to be taken. If an act becomes necessary to make the agreement effective. Unfortunately. This final clause is a “catch-all. If the parties want to change the time limits in Section 4. Further Assurances.

Be vigilant in protecting your intellectual property and deal intelligently with your employees. Although the protection of your business starts with a well-crafted nondisclosure agreement. enter the name of the person signing on the company’s behalf. It takes only one disclosure to alter the landscape of your business permanently. Remember: this is the date your agreement becomes effective. business partners.ADD INFORMATION: Write in the name of each party’s business in capital letters at the top of their signature block. Enter the title of the person signing only if they are signing on behalf of a business. it doesn’t end there. delete this area. If a party is an individual. Mutual Nondisclosure Agreement . and customers. Write in the name of the person signing where it says “Name. Make sure each person signing enters the date on which they are signing.” If this is a business.

IN CAPITAL LETTERS. employees. strategies. or by any other media. that has been or may be: (i) provided or shown to the Receiving Party or its directors.MUTUAL NONDISCLOSURE AGREEMENT This mutual nondisclosure agreement is between PARTY ONE NAME. and other material. CONFIDENTIAL INFORMATION. provided orally. and representatives (each a “Disclosing Party Representative”). the Disclosing Party or a Disclosing Party Representative. officers. employers. a “Receiving Party”). specifications. software. Each party agrees to review. manuals. compilations. products. Each party (in such capacity. employees. “Confidential Information” means: (a) information relating in any way to the Disclosing Party or its current or proposed business. or obtain the other party’s confidential information for the above-described purposes only. in writing. budgets and projections. and representatives (each a “Receiving Party Representative”) by or on behalf of the Disclosing Party or any of its directors. inspect. analyses. in writing. studies. and to otherwise maintain the confidentiality of that information pursuant to the terms of this agreement. or communications with. agents. whether provided orally. that contain or are based on all or part of the information described in subsection (a) (the “Derivative Materials”). officers. IN CAPITAL LETTERS. computer programs. and (ii) (b) any and all notes. or by any other media. a[n] State of Organization. customer identifying information. summaries. The parties therefore agree as follows: 1. examine. and other confidential information. agents. business plans. potential and intended customers. Confidential Information disclosed orally shall be identified as such within Number of Days Mutual Nondisclosure Agreement . a[n] State of Organization. marketing plans. analyses. if not an individual Select your business type and PARTY TWO NAME. if not an individual Select your business type Each party has developed certain confidential information that it may disclose to the other party for the purpose of Explain why the parties are exchanging information. including without limitation financial statements. a “Disclosing Party”) may (but shall not be required to) disclose certain of its confidential and proprietary information to the other party (in such capacity. or obtained by the Receiving Party or a Receiving Party Representative from review of documents or property of.

The Disclosing Party’s failure to identify information as Confidential Information is not an acknowledgment or admission by the Disclosing Party that that information is not confidential. With the Disclosing Party’s prior written authorization. the Receiving Party and Receiving Party Representatives shall not: (i) Disclose any Confidential Information to any person or entity other than: a. disassemble. A Receiving Party Representative who signs a confidentiality agreement. the Receiving Party shall protect such trade secret(s) for as long as the information qualifies as a trade secret. 3. and is not a waiver by the Disclosing Party of any of its rights with respect to that information. maintain the confidentiality and security of the Disclosing Party’s Confidential Information until the earlier of: (i) such time as all Confidential Information of the Disclosing Party disclosed hereunder becomes publicly known and is made generally available through no action or inaction of the Receiving Party or (ii) the third anniversary of the disclosure. keep the Confidential Information confidential. OBLIGATION TO MAINTAIN CONFIDENTIALITY. or decompile any prototypes. or (ii) Use the Confidential Information for any purposes other than those contemplated by this agreement. software or other tangible objects that embody the Disclosing Party’s Confidential Information and that are provided to the Receiving Party hereunder. (a) Confidentiality. to the extent that the Disclosing Party has disclosed information to the Receiving Party that constitutes a trade secret under law. The Receiving Party shall not reverse engineer. however. The Receiving Party shall.days of disclosure. and b. 2. Except as otherwise required by law. (c) Term. The obligations and restrictions of this agreement do not apply to that part of the Confidential Information that the Receiving Party demonstrates: (a) was or becomes generally publically available other than as a result of a disclosure by the Receiving Party in violation of this agreement. and shall require each Receiving Party Representative to. and c. EXCLUSIONS. Mutual Nondisclosure Agreement . provided. (b) No Reverse Engineering. and shall ensure that each Receiving Party Representative. A Receiving Party Representative who needs to know the Confidential Information for the purposes of its business with the Disclosing Party. The Receiving Party shall.

however. legal. that the Receiving Party shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information so disclosed. in the written opinion of counsel reasonably acceptable to the Disclosing Party. fiduciary.(b) was or becomes available to the Receiving Party on a non-confidential basis before its disclosure to the Receiving Party by the Disclosing Party or a Disclosing Party Representative. civil or criminal investigative demand. interrogatories. provided. however. the Receiving Party is legally compelled or otherwise required to disclose. and shall cause each Receiving Party Representative to promptly (and no later than Number of Days days after the request): Mutual Nondisclosure Agreement . RETURN OF PROPERTY. to be disclosed. or is required by a regulatory body. the Receiving Party shall. then the Receiving Party may furnish that portion (and only that portion) of the Confidential Information that. 4. If a Disclosing Party requests. or (c) is requested or legally compelled (by oral questions. (ii) If a protective order or other remedy is not obtained or the Disclosing Party grants a waiver hereunder. provided. requests for information or documents. or (d) was developed by the Receiving Party independently without breach of this agreement. and provide reasonable assistance to the Disclosing Party in obtaining any such protective order. or other obligation. subpoena. and (ii) the Receiving Party provides the Disclosing Party with written notice of such prior possession either (I) before the execution and delivery of this agreement or (II) if the Receiving Party later becomes aware (through disclosure to the Receiving Party) of any aspect of the Confidential Information as to which the Receiving Party had prior possession. that the Receiving Party shall: (i) provide the Disclosing Party with prompt written notice of any such request or requirement before disclosure so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy. promptly on the Receiving Party so becoming aware. or similar process). but only if: (i) the source of such information is not bound by a confidentiality agreement with the Disclosing Party or is not otherwise prohibited from transmitting the information to the Receiving Party or a Receiving Party Representative by a contractual.

the Disclosing Party’s sole property. The term “residuals” means information in intangible form that is retained in memory by people who have had access to the Confidential Information. even if any suggestions made by a Receiving Party are incorporated into the Confidential Information. RESIDUALS.(a) Return all Confidential Information to such Disclosing Party. NO OBLIGATION. except as required by law and except as the parties otherwise may agree in writing before a disclosure. in the other party’s Confidential Information. 8. business practice. and (b) Destroy all Derivative Material and within Number of Days days of this destruction. NO PUBLICITY. Nothing herein shall obligate either party to proceed with any transaction between them. each party shall be free to use for any purpose the residuals resulting from access to or work with the other party’s Confidential Information. if any. know-how. Neither party obtains any rights under this agreement. Neither party is required to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. 7. This Section 5 does not give either party a license under the other party’s copyrights or patents. in its sole discretion. or products of the other party. that neither party shall disclose the other party’s Confidential Information except as expressly permitted pursuant to the terms of this agreement. FUTURE PRODUCTS. provide a written certificate to such Disclosing Party confirming this destruction. and the transactions or discussions contemplated by this agreement. however. communications. The Confidential Information may pertain to prospective or unannounced products. or other activities under this agreement on Mutual Nondisclosure Agreement . 5. including ideas. concepts. or techniques contained therein. and each party reserves the right. provided. Each party agrees not to use the other party’s Confidential Information as a basis on which to develop or have a third party develop a competing or similar plan or undertaking. to terminate the discussions contemplated by this agreement concerning the business opportunity. The parties shall keep the existence of this agreement. OWNERSHIP RIGHTS. Each party acknowledges that the Confidential Information is. strictly confidential. Further. 6. and that the disclosure of the Confidential Information shall not be construed as evidencing any intent by a party to purchase any products or services of the other party or as an encouragement to expend funds in development or research efforts. by license or otherwise. and at all times will be. Each party understands and agrees that neither party solicits any change in the organization. service. and to also cease further disclosures. The terms of confidentiality under this agreement shall not limit either party’s right to develop or acquire products independently without use of the other party’s Confidential Information.

12. COMPLETENESS.written notice to the other party. (a) Choice of Law. NO WARRANTY. If a purported assignment or Mutual Nondisclosure Agreement . a Disclosing Party may. EXPRESS. GOVERNING LAW. (c) Attorneys’ Fees. If either party employs attorneys to enforce any rights arising out of or relating to this agreement. (b) Choice of Forum. (a) No Assignment. except with the prior written consent of the other party. Any commitment to proceed with a transaction shall be set forth in a separate agreement signed by the parties. ATTORNEYS’ FEES. State. and may pursue other legal remedies. No amendment to this agreement will be effective unless it is in writing and signed [by both parties] [by the parties’ respective authorized representatives] [by a party or its authorized representative]. AMENDMENTS. 11. OR PERFORMANCE OF ANY SUCH INFORMATION. Both parties consent to the personal jurisdiction of the state and federal courts in County. ASSIGNMENT AND DELEGATION.” NEITHER PARTY MAKES ANY WARRANTIES. specific performance. 10. OR OTHERWISE. The laws of the state of State govern this note (without giving effect to its conflicts of law principles). (b) No Delegation. or other equitable remedy to prevent competition or further disclosure. Neither party may assign any of its rights under this agreement. (d) Equitable Relief. REGARDING THE ACCURACY. If a Receiving Party discloses Confidential Information in violation of this agreement. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS. the losing party shall reimburse the prevailing party for its reasonable attorneys’ fees. All voluntary assignments of rights are limited by this subsection. seek an injunction. without waiving any other rights or remedies and without posting a bond or other security. EQUITABLE RELIEF. IMPLIED. Neither party may delegate any performance under this agreement. (c) Enforceability of an Assignment or Delegation. Each party agrees that a breach of this agreement will cause irreparable harm to the Disclosing Party and that monetary damages may not be a sufficient remedy for an unauthorized disclosure of the Confidential Information. which consent shall not be unreasonably withheld. 9.

(a) Counterparts. or unenforceable provisions had never been contained herein. nationally recognized overnight courier (fees prepaid). agreements ancillary to this agreement. but this agreement shall be construed as if such invalid. (b) Electronic Signatures. the parties and their respective heirs. illegality. The parties agree that this agreement. e-mail. Each party giving or making any notice. COUNTERPARTS. SEVERABILITY. facsimile. 14. or if both are made. A party shall address notices under this Section 16 to a party at the following addresses: Mutual Nondisclosure Agreement . ELECTRONIC SIGNATURES. (a) Writing. or unenforceability shall not affect any other provisions of this agreement. each of which is a writing for purposes of this agreement: personal delivery. demand. whether a party may assign its rights or delegate its performance under this agreement. illegal. request. If any one or more of the provisions contained in this agreement is. unless the deletion of such provision or provisions would result in such a material change so as to cause completion of the transactions contemplated herein to be unreasonable. The parties may execute this agreement in any number of counterparts. NOTICES. administrators. This agreement binds. 13. 15.purported delegation is made. illegal. or email. Section 12 above addresses these matters. for any reason. it is void and they are void. and related documents entered into in connection with this agreement is signed when a party’s signature is delivered by facsimile. return-receipt requested). held to be invalid. Permitted Delivery Methods. in violation of this Section 12. This Section 13 does not address. each of which is an original but all of which constitute one and the same instrument. or unenforceable in any respect. directly or indirectly. 16. such invalidity. (b) Addresses. legal representatives and permitted successors and assigns. Such signatures must be treated in all respects as having the same force and effect as an original signature. executors. mail (registered or certified mail. postage prepaid. SUCCESSORS AND ASSIGNS. and inures to the benefit of. or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery. or other electronic medium.

All prior and contemporaneous communications negotiations and agreements between the parties relating to the subject matter hereof are expressly merged into and superseded by this agreement. No waiver of any breach. State Zip Code Fax Number Email Address (c) Effectiveness. HEADINGS. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice. failure. Mutual Nondisclosure Agreement . and neither party is relying on. failure of any condition. right.If to Party One Name: Contact Name/Position Mailing Address City. 19. Except as set forth expressly in this agreement. No waiver of a breach. or agreement of the other party except those set forth expressly in this agreement. any statement. unless the writing so specifies. ENTIRE AGREEMENT. or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach. It is the complete and exclusive expression of the parties’ agreement with respect to the subject matter of this agreement. or remedy. whether or not similar. The provisions of this agreement may not be explained. supplemented. WAIVER. or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by. failure. representation. and do not affect this agreement’s construction or interpretation. right. State Zip Code Fax Number Email Address If to Party Two Name: Contact Name/Position Mailing Address City. This agreement constitutes the final agreement of the parties. 17. 18. and no waiver will constitute a continuing waiver. there are no conditions precedent to this agreement’s effectiveness. failure. or remedy will be deemed a waiver of any other breach. right. or remedy. warranty. The descriptive headings of the sections and subsections of this agreement are for convenience only.

NECESSARY ACTS. or cause to be taken. all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement. EFFECTIVENESS.20. 21. This agreement will become effective when all parties have signed it. Each party and its officers and directors shall use all commercially reasonable efforts to take. FURTHER ASSURANCES. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party’s signature) will be deemed the date of this agreement. [SIGNATURE PAGE FOLLOWS] Mutual Nondisclosure Agreement .

if not an individual Date: ___________________ By: Name: Name of Person Signing Title: Title of Person Signing Mutual Nondisclosure Agreement .Each party is signing this agreement on the date stated opposite that party’s signature. PARTY ONE NAME. if not an individual Date: ___________________ By: Name: Name of Person Signing Title: Title of Person Signing PARTY TWO NAME.

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