Non-Disclosure Agreement (NDA) - Template, Sample Form Pro · US-law
✓ Valid in United States · drafted to comply with local law
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NON-DISCLOSURE AGREEMENT
State of ________
BACKGROUND
A. This Non-Disclosure Agreement (hereinafter the "Agreement"), effective as of the date set forth at the end of this document (the "Effective Date"), is made by and between the following parties: ________, a ________ organized under the laws of the State of ________, with its principal place of business located at the following address:
________
and ________, a ________ organized under the laws of the State of ________, with its principal place of business located at the following address:
________
B. For purposes of this Agreement, the following party shall be referred to as the "Disclosing Party": ________. The following party shall be referred to as the "Receiving Party": ________. The Disclosing Party and the Receiving Party may be referred to individually as a "Party" and collectively as the "Parties."
WHEREAS, the Disclosing Party possesses certain non-public Confidential Information (as hereinafter defined) and Trade Secret Information (as hereinafter defined) (collectively, the "Proprietary Information") regarding its business operations and development;
WHEREAS, the Parties agree that the Proprietary Information is secret and valuable to the Disclosing Party;
WHEREAS, the Disclosing Party and the Receiving Party may enter into, or have entered into, a business relationship through which the Receiving Party will have access to the Proprietary Information;
WHEREAS, the particular nature and purpose of the Parties' business relationship is as follows:
________
WHEREAS, the Disclosing Party desires to maintain the secret and private nature of any Proprietary Information disclosed to the Receiving Party;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
§ I. DEFINITIONS
1. As used in this Agreement:
Confidential Information may or may not be designated as such through labeling, but shall be considered any information that ought to be treated as confidential under the circumstances in which it was disclosed.
Confidential Information shall not include any information that:
i) is known or available to the public at the time of disclosure or becomes known or available after disclosure through no fault, act, or omission of the Receiving Party;
ii) is already known, through legal means, to the Receiving Party at the time of disclosure;
iii) is disclosed by the Disclosing Party to third parties, other than the Receiving Party, without any restriction on disclosure;
iv) is provided to the Receiving Party by any third party who lawfully possessed the Confidential Information and had the right to disclose it; or
v) is independently developed by the Receiving Party without reference to or use of the Confidential Information, and the Receiving Party can demonstrate such independent development by competent written records.
b) "Trade Secret Information" shall mean any formula, pattern, compilation, program, device, method, technique, process, design, or other information that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and that is the subject of efforts that are reasonable under the circumstances to maintain its secrecy, consistent with the Uniform Trade Secrets Act as enacted in the governing state and the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836 et seq.
§ II. TERM
2. This Agreement shall be effective as of the Effective Date and shall remain in full force and effect for the following period: ________. The nondisclosure provisions of this Agreement, as applicable to the Receiving Party's duties with regard to the Confidential Information, shall survive the termination of this Agreement for a period of three (3) years. Notwithstanding the foregoing, the obligations to maintain the confidentiality of Trade Secret Information shall continue for so long as such information remains a trade secret under applicable law.
§ III. RESTRICTIONS
3. The Receiving Party hereby agrees that it shall:
a) not disclose the Proprietary Information by any unauthorized means to any third party throughout the duration of this Agreement and the Parties' relationship with each other;
b) not disclose the Confidential Information by any unauthorized means to any third party for a period of three (3) years following the termination of this Agreement, as established in § II of this Agreement;
c) not disclose the Trade Secret Information to any third party at any time, for so long as such information remains a trade secret under applicable law; and
d) not use the Confidential Information or the Trade Secret Information for any purpose except those contemplated herein or expressly authorized in writing by the Disclosing Party.
§ IV. PERMISSIONS
4. The Receiving Party may disclose the Proprietary Information in accordance with governmental orders, including judicial subpoenas or notices, provided that the Receiving Party gives the Disclosing Party prompt and reasonable prior written notice (to the extent legally permitted) and reasonably cooperates with the Disclosing Party, at the Disclosing Party's expense, to seek and comply with applicable protective orders or their equivalents.
5. The Receiving Party shall take all reasonable security precautions, no less protective than those it uses to protect its own confidential information of like importance (and in no event less than a reasonable standard of care), to protect the Confidential Information. The Receiving Party shall use stringent security precautions to protect the Trade Secret Information. Proprietary Information may be disclosed only to the Receiving Party's employees, agents, or consultants on an as-needed and need-to-know basis.
6. Any employee, agent, consultant, parent, subsidiary, affiliate, or other related party of the Receiving Party that is permitted to access the Proprietary Information shall be instructed to maintain the confidentiality of such information. Such related parties shall not be permitted to make unauthorized copies of any tangible manifestations of such information.
7. The Receiving Party shall maintain written agreements with any and all related parties that have access to the Proprietary Information sufficient to ensure compliance with the terms of this Agreement, and the Receiving Party shall remain liable for any breach by such related parties. Proprietary Information may be disclosed pursuant to the Parties' business relationship or as otherwise provided hereunder.
§ V. OWNERSHIP MAINTAINED
8. Both Parties acknowledge and agree that all Proprietary Information disclosed under this Agreement shall remain the sole and exclusive property of the Disclosing Party. Nothing in this Agreement shall be construed as granting, by implication, estoppel, or otherwise, any license or rights in the Proprietary Information to the Receiving Party.
§ VI. RIGHTS AND REMEDIES
9. The Receiving Party hereby agrees to promptly notify the Disclosing Party of any disclosure of any Proprietary Information in violation of this Agreement, whether such disclosure was inadvertent or intentional.
10. The Receiving Party also agrees to notify the Disclosing Party of any legal matter or process requiring disclosure of any Proprietary Information before producing any such information, to the extent legally permitted.
11. The Receiving Party agrees to cooperate with the Disclosing Party to assist in the collection and retention of Proprietary Information following any unauthorized disclosure and to prevent further unauthorized use or dissemination of the Proprietary Information.
12. The Receiving Party shall, upon the Disclosing Party's request, return any tangible documents or products, including originals, copies, summaries, or notes of the Proprietary Information, or certify the destruction of the same, at the Disclosing Party's sole and exclusive discretion.
13. The Receiving Party acknowledges that monetary damages may not be a sufficient remedy for any unauthorized disclosure of the Proprietary Information, and, as such, the Disclosing Party may seek injunctive or other equitable relief, without the necessity of posting a bond and without waiving any other rights or remedies, in any court of competent jurisdiction.
§ VII. GOVERNING LAW AND VENUE
14. This Agreement shall be governed by and construed in accordance with the laws of the State of ________, without regard to its conflict of laws principles, together with any applicable federal law. Both Parties irrevocably consent and submit to the exclusive jurisdiction and venue of the state and federal courts located in ________ for the resolution of any dispute arising out of or relating to this Agreement.
§ VIII. SEVERABILITY
15. If any provision of this Agreement is held to be invalid, illegal, or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid and enforceable to the fullest extent permitted by law. Any invalid or unenforceable provision shall be deemed modified to the minimum extent necessary to make it valid and enforceable while preserving the original intent of the Parties.
§ IX. WAIVER
16. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party's right to subsequently enforce and compel strict compliance with every provision of this Agreement. No waiver of any term or condition of this Agreement shall be valid or binding unless made in writing and signed by the Party against whom enforcement of the waiver is sought.
§ X. NOTICE OF IMMUNITY FROM LIABILITY
§ XI. NO AGENCY
18. Nothing in this Agreement shall be construed to create any partnership, joint venture, or similar relationship between the Parties, and nothing herein shall be construed to denote any kind of agency between the Parties.
§ XII. PUBLIC ANNOUNCEMENT
19. Neither Party shall make any public announcement or disclosure regarding the existence of this Agreement or any of the terms herein without the prior written approval of the other Party, except as required by applicable law.
§ XIII. NOTICES; ELECTRONIC COMMUNICATIONS PERMITTED
20. Any notice to be given under this Agreement shall be in writing and shall be sent by first-class mail, airmail, or email, to the address of the relevant Party set out at the head of this Agreement, or to the relevant email address set out below, or to such other address as that Party may from time to time notify to the other Party in accordance with this clause. The relevant contact information for the Parties is as follows:
Disclosing Party: ________
Receiving Party: ________
21. Notices sent as above shall be deemed to have been received three (3) working days after the date of posting (in the case of first-class mail), seven (7) working days after the date of posting (in the case of airmail), or the next working day after sending (in the case of email).
22. In proving the giving of a notice, it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and dispatched and dispatch of the transmission was confirmed and/or acknowledged, as the case may be.
§ XIV. ENTIRE AGREEMENT
23. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes any prior or contemporaneous understandings, representations, or agreements, whether written or oral.
§ XV. HEADINGS
24. Headings to this Agreement are for convenience only and shall not be construed to limit or otherwise affect the terms of this Agreement.
§ XVI. AMENDMENTS
25. No amendment or modification of this Agreement shall be valid or binding upon the Parties unless made in writing and signed by authorized representatives of both Parties.
§ XVII. ASSIGNMENT
26. Neither Party may assign or transfer this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, except that either Party may assign this Agreement to a successor in connection with a merger, acquisition, or sale of all or substantially all of its assets. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
§ XVIII. COUNTERPARTS
27. This Agreement may be executed in counterparts, including by electronic signature, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If the dates set forth at the end of this document differ, this Agreement shall be considered effective as of the later of such dates on which both Parties have signed.
SIGNATURES
________ (Disclosing Party):
Sign: ________________________________ Date: ________
Print: ________
Title: ________
________ (Receiving Party):
Sign: ________________________________ Date: ________
Print: ________
Title: ________
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