Mutual Nondisclosure Agreement
This mutual nondisclosure agreement (“Agreement”) is made and entered into as of the date last signed (“Effective Date”) between [name of party] and the other party set forth in the signature block below. The party disclosing Confidential Information (defined in section 2 below) is the “Disclosing Party,” and the party receiving the Confidential Information is the “Recipient.”
1.Purpose. The parties wish to explore a business opportunity of mutual interest and benefit (“Opportunity”), and in connection with the Opportunity, each party may disclose to the other certain confidential technical and business information that the Disclosing Party desires the Recipient to treat as confidential.
2.Confidential Information. “Confidential Information” means any information disclosed by the Disclosing Party to the Recipient, either directly or indirectly, in writing, orally, or by inspection of tangible objects, including, without limitation, business plans, customer data, customer lists, customer names, designs, documents, drawings, engineering information, financial analyses, hardware configuration information, inventions, market information, marketing plans, processes, products, product plans, research, services, specifications, software, source code, trade secrets, and any other information that the Disclosing Party identifies as “confidential,” “proprietary,” or similar or that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Confidential Information also includes information disclosed to the Disclosing Party by third parties. Confidential Information shall not, however, include any information that (a) is now, or hereafter becomes, through no act or failure to act on the part of the Recipient, generally known and made generally available in the public domain; (b) is in the possession of the Recipient at the time of disclosure by the Disclosing Party, as shown by the Recipient’s files and records immediately before the time of disclosure; (c) is obtained by the Recipient without restriction on use or disclosure from a third party without a breach of the third party’s obligations of confidentiality; or (d) is independently developed by the Recipient without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Recipient’s possession.
3.Permitted Use. The Recipient agrees that it shall use the Disclosing Party’s Confidential Information solely for the purpose of evaluating the Opportunity and shall not reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody the Disclosing Party’s Confidential Information without the Disclosing Party’s express written consent. If such a prohibition is not permitted pursuant to applicable law, the Recipient shall provide the Disclosing Party written notice before undertaking any such reverse engineering and shall give the Disclosing Party reasonable time to provide any interface information required by law before commencing the reverse engineering. If the interface information is provided, the Recipient is prohibited from reverse engineering. The Recipient shall not make any copies of the Disclosing Party’s Confidential Information unless the Disclosing Party previously approves the same in writing. The Recipient shall reproduce the Disclosing Party’s proprietary rights and confidentiality notices on any authorized copies in the same manner in which the notices were set forth in or on the original. The Recipient agrees not to remove or export from the United States or reexport any of the Disclosing Party’s Confidential Information or any direct product thereof except in compliance with this paragraph and in compliance with, and with all licenses and approvals required under, applicable export laws and regulations, including, without limitation, those of the United States Department of Commerce.
4.Maintenance of Confidentiality. The Recipient shall maintain the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care that it uses to protect its own Confidential Information, but in any event shall use at least commercially reasonable measures to protect the confidentiality of and avoid disclosure of the Disclosing Party’s Confidential Information. The Recipient further agrees that the Disclosing Party’s Confidential Information will be kept confidential, and the Recipient agrees it will not disclose any of the Disclosing Party’s Confidential Information to employees or to third parties, provided, however, that the Confidential Information may be disclosed to the Recipient’s directors, officers, employees, or representatives who need to know the Confidential Information for the purpose of evaluating the Opportunity and have agreed to abide by nondisclosure terms at least as protective of the Disclosing Party’s Confidential Information as those set forth in this Agreement. The Recipient also agrees to make copies of Confidential Information only as necessary to evaluate the Opportunity. The Recipient shall promptly notify the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information.
5.Disclosure Required by Law. If the Recipient is required by law or a valid and effective subpoena or order issued by either a court of competent jurisdiction or a governmental body to disclose any of the Disclosing Party’s Confidential Information, the Recipient shall promptly notify the Disclosing Party in writing of the existence, terms, and circumstances surrounding the required disclosure so that the Disclosing Party may seek a protective order, have the Recipient seek a protective order on its behalf, or pursue other appropriate relief from the proper authority. The Recipient shall cooperate with the Disclosing Party in seeking the order or other relief. If the Recipient is nonetheless required to disclose the Disclosing Party’s Confidential Information, it will furnish only that portion of the Confidential Information that is legally required and will exercise all reasonable efforts to obtain reliable assurances that the Confidential Information will be treated confidentially to the extent possible.
6.No Obligation. Each party understands and agrees that nothing in this Agreement requires either party (a) to disclose any Confidential Information, which shall be disclosed, if at all, solely at the option of the Disclosing Party; (b) to proceed with the Opportunity or any relationship in connection with which Confidential Information may be disclosed; or (c) to refrain from entering into an agreement or negotiation with any other party. Nothing in this Agreement shall be construed as creating any joint venture, teaming arrangement, partnership, or other formal business organization or agency arrangement between the parties.
7.No Warranty. All Confidential Information is provided “as is.” Neither party makes any warranties, express, implied, or otherwise, regarding the accuracy, completeness, or performance of the Confidential Information, and each party expressly disclaims any warranty of merchantability or fitness for a particular purpose.
8.Return of Materials. All documents and other tangible objects containing or representing Confidential Information disclosed by the Disclosing Party to the Recipient and all copies thereof shall remain the property of the Disclosing Party and shall be promptly returned to the Disclosing Party, or in the case of electronic materials, permanently deleted, upon the Disclosing Party’s written request or upon termination or expiration of this Agreement, whichever is sooner. The Recipient shall certify that all such materials have been returned or permanently deleted, as applicable.
9.No License. All of the Disclosing Party’s Confidential Information shall remain the sole property of the Disclosing Party. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret, or other intellectual property right of the other party, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information except as expressly set forth in this Agreement.
10.Term and Termination. This Agreement shall be effective as of the Effective Date and shall remain in effect for three years. Thereafter, the Agreement shall automatically renew for additional automatic one-year terms if any Confidential Information has been exchanged within three months preceding the renewal date. Otherwise, the Agreement shall expire. Upon expiration or termination of this Agreement, the obligations of the Recipient to the Disclosing Party’s Confidential Information shall survive and shall continue until that Confidential Information is no longer Confidential Information as defined in section 2 above.
11.Remedies. The Recipient agrees that its obligations under this Agreement are necessary and reasonable to protect the Disclosing Party and the Disclosing Party’s business and expressly agrees that monetary damages would be inadequate to compensate the Disclosing Party for any breach by the Recipient of this Agreement. Accordingly, the Recipient agrees and acknowledges that any breach or threatened breach of this Agreement will cause irreparable injury to the Disclosing Party and that in addition to any other remedies that may be available in law, in equity, or otherwise, the Disclosing Party shall be entitled to obtain injunctive relief against the continuation of the breach or the threatened breach of this Agreement without the necessity of proving actual damages or posting bond.
12.Feedback. Notwithstanding the foregoing, any ideas, suggestions, guidance, or other information disclosed by the Recipient related to the Disclosing Party’s Confidential Information and any related intellectual property rights shall be collectively deemed “Feedback.” The Disclosing Party shall own all Feedback, and the Recipient assigns to the Disclosing Party all of its right, title, and interest in and to the Feedback. To the extent that the foregoing assignment is ineffective for whatever reason, the Recipient grants to the Disclosing Party a nonexclusive, perpetual, irrevocable, royalty-free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit the Feedback without restriction.
13.Miscellaneous. This Agreement shall be governed by the laws of the state of Texas without regard to its conflict-of-laws provisions, and the parties consent to the exclusive jurisdiction and venue of the state and federal courts located in [county] County, Texas, and agree to waive all objections to personal jurisdiction, venue, and forum non conveniens. This Agreement contains the entire agreement between the parties on its subject matter and supersedes all prior related communications, reports, and understandings between the parties. Any failure to enforce any provision of this Agreement shall not constitute a waiver of that or any other provision. If any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though the term were absent on the Effective Date. This Agreement shall bind and inure to the benefit of the parties and their successors and assigns. Neither party may assign this Agreement without the express written consent of the other party, and any prohibited assignment shall be void, provided that either party may assign this Agreement pursuant to a merger, acquisition, or sale of all or substantially all of the party’s assets unless the proposed assignee is a competitor of the other party. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties. This Agreement may be executed in counterparts, each of which shall be deemed original, and both together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the Effective Date.
[Name of party]
By:
[Name], [title]
[Address]
[Phone]
[Fax]
[E-mail]
Date:
Other party:
Printed company name (if on behalf of an entity)
Signature
Printed name
Printed title (if on behalf of an entity)
Address
City, state, zip
Phone number
Fax number
E-mail address
Date: