NDA (Mutual)

[Company Name]

MUTUAL NONDISCLOSURE AND NON-CIRCUMVENTION AGREEMENT

BACKGROUND

This Mutual Nondisclosure and Non-Circumvention Agreement (the “Agreement”) is made as of [Date], by and between [Company Name], (the “Company”), and [Counterparty Name] (“Counterparty”). Each party has disclosed and/or may further disclose its Confidential Information (as defined below) to the other in connection with [the Relationship] (as defined below) pursuant to the terms and conditions of this Agreement.

PARTIES

1. [Company Name] incorporated and registered in [Company Registration Location] whose office is located at [Company Address].

2. [Counterparty Name] [Counterparty Additional Information].

AGREED TERMS

1. DEFINITIONS AND INTERPRETATION.
   1. The following definitions and rules of interpretation in this clause apply in this agreement:
      1. Confidential Information: Any oral, written, graphic or machine-readable, information, technical data, facts, opinions, conclusions, projections or know-how, including, but not limited to, that which relates to business records and plans, technical data, product plans and ideas, contracts, financial information, pricing structure, discounts, copyrights and intellectual property, sales leads, strategic alliances, partners, investors, customer and client lists, prospects, trade secrets, research, developments, inventions, processes, designs, drawings, patents, patent applications, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, algorithms, regulatory information, medical reports, clinical data and analysis, reagents, cell lines, biological materials, chemical formulas, agreements with third parties, services, customers, marketing schemes, personnel matter or finances, provided by the Discloser, whether or not owned or developed by the Discloser, which is not generally known other than by the Discloser, and which the Recipient may obtain orally, in writing or through observation or examination of Discloser's facilities, documents, or procedures, regardless of whether specifically identified as confidential or proprietary.
      2. Discloser: Any party to this agreement which discloses or makes available directly or indirectly Confidential Information.
      3. Recipient: Any party to this agreement which receives or obtains directly or indirectly Confidential Information.
      4. Recipient Representatives: Employees, agents, directors, officers, advisers, consultants and other representatives or associated entity or individual of the Recipient.
      5. Purpose of the relationship:
         1. The parties wish to explore a possible business opportunity of mutual interest regarding, inter alia, [the Relationship] (the “Relationship”) in connection with which the Discloser has disclosed and/or may further disclose its Confidential Information (as defined below) to Recipient.
         2. This Agreement is intended to allow the parties to continue to discuss and evaluate the Relationship while protecting Discloser’s Confidential Information (including Confidential Information previously disclosed to Recipient) against unauthorized use or disclosure.

2. OBLIGATIONS OF CONFIDENTIALITY.
   1. The Recipient understands and acknowledges that:
      1. the Confidential Information is a valuable, special and unique asset of Discloser which provides Discloser with a significant competitive advantage, and needs to be protected from improper disclosure;
      2. irreparable injury and damage may result from disclosure of Confidential Information to any parties or individuals not expressly authorized under this Agreement or from utilization for any purpose other than the Relationship; and
      3. Recipient shall at all times be liable for the failure of any Recipient Representative to comply with the terms of this agreement.

   2. The Recipient agrees to:
      1. hold the Confidential Information in strict confidence;
      2. take reasonable measures, consistent with or better than the Recipient's treatment of its own confidential information of a similar nature, to protect the secrecy of and avoid disclosure or use of Confidential Information of Discloser in order to prevent it from falling into the public domain or the possession of persons other than those authorized under this Agreement;
      3. keep a record of all Recipient Representatives who had access to the Confidential Information; and
      4. promptly notify Discloser of any misuse, misappropriation or unauthorized disclosure of Confidential Information of Discloser which came to Recipient’s attention.
   3. Recipient, except as otherwise expressly authorized by Discloser, agrees to not:
      1. use any Confidential Information disclosed to it by Discloser for its own use or for any purpose other than to carry out discussions concerning, and the undertaking of the Relationship; or
      2. modify, reverse engineer, decompile, create other works from or disassemble any software programs contained in the Confidential Information of Discloser.
   4. Permitted Disclosures. Recipient may not disclose or permit disclosure of any Confidential Information of Discloser to third parties or to Recipient Representatives except those who:
      1. are required to have the information in order to carry out discussions regarding the Relationship, but only to the extent necessary to carry out the discussions;
      2. have been informed of the confidential nature of the Confidential Information before disclosure; and
      3. have signed an agreement with non-disclosure clauses which are substantially equivalent to confidentiality clauses of this Agreement with Recipient.
   5. Common Interest Disclosures.
      1. All Confidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the common interest doctrine.
      2. Nothing in this Agreement shall be interpreted to mean that a party hereto would be prevented from using Confidential Information in a legal proceeding against the other party hereto based upon a dispute arising out of this Agreement, provided that the other party has been notified in advance of such use or disclosure and been afforded sufficient opportunity to seek and obtain confidential treatment by the court or other entity having jurisdiction over the matter at hand.
   6. Exceptions. Notwithstanding the above, Recipient shall not have liability to Discloser with regard to any Confidential Information that Recipient can prove:
      1. was in the public domain at the time it was disclosed or has become generally known or entered the public domain through no fault of Recipient;
      2. was known to Recipient, without restriction, at the time of disclosure, before receiving such information, as demonstrated by files in existence at the time of disclosure;
      3. was independently developed by Recipient without any use of the Confidential Information, as demonstrated by files created at the time of such independent development;
      4. has become known to Recipient, without restriction, from a source other than Discloser without breach of this Agreement by Recipient or in violation of Discloser’s rights;
      5. is disclosed with the prior written approval of Discloser; or
      6. is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that Recipient shall:
         1. use reasonable efforts to limit the disclosure by means of a protective order or a request for confidential treatment at Discloser's expense; and
         2. provide prompt notice of such court order or requirement to Discloser to enable Discloser to seek a protective order or otherwise prevent or restrict such disclosure.
   7. Return of Confidential Information.
      1. Upon the written request of Discloser or the rejection or conclusion of the Relationship, Recipient shall promptly:
         1. return any materials or documents that have been furnished by Discloser in connection with the Relationship accompanied by all copies of such documentation;
         2. destroy all notes, abstracts and other documents that contain Confidential Information.
      2. Subject to the continuing confidentiality obligations hereunder Recipient:
         1. shall not be obligated to erase the information contained in archived computer system backups in accordance with its security and/or disaster recovery procedures; and
         2. may maintain one copy of any of the information in Recipient's records in accordance with Recipient's customary business practices and as may be required by the regulations and rules of any governmental agency or other regulatory authority, including any self-regulatory organization having or claiming to have jurisdiction.

3. OBLIGATIONS OF NON-CIRCUMVENTION.
   1. Identities of any individual or entity and any other third parties including, without limitation, suppliers, customers, financial sources, manufacturers and consultants discussed and made available by the Discloser in respect of the Relationship and any related business opportunity shall constitute Confidential Information and the Recipient or Recipient Representatives shall not, without prior written consent of Discloser:
      1. directly or indirectly initiate, solicit, negotiate, or enter into any business transactions, agreements or undertaking with any such third party identified or introduced by the Discloser; or
      2. seek to by-pass, compete, avoid or circumvent the Discloser in respect of any business opportunity that relates to the Relationship by utilizing any Confidential Information or by otherwise exploiting or deriving any benefit from the Confidential Information.
   2. Discloser may withhold consent mentioned in clause 3.1 in its sole discretion.

4. OBLIGATIONS OF NON-DISPARAGEMENT. Each party agrees that it will not at any time engage in any action either directly or indirectly that disparages or results in the disparagement of any other party.

5. [NO PUBLICITY. Neither party shall, without the prior consent of the other party, disclose to any other person the fact that Confidential Information of Discloser has been and/or may be disclosed under this Agreement, that discussions or negotiations are taking place between the parties, or any of the terms, conditions, status or other facts with respect thereto, except as required by law and then only with prior notice as soon as possible to the other party.]

6. RIGHTS.
   1. Discloser retains all rights and remedies with respect to the Confidential Information afforded it under the law both during and after the term of this Agreement, including without limitation any patent, trade secret or other laws designed to protect proprietary or confidential information.
   2. Nothing in this Agreement is intended to, or shall be construed as:
      1. granting or implying any rights or license under any patent, copyright or other intellectual property rights in which Discloser has any right, title or interest;
      2. granting Recipient any rights in or to Discloser’s Confidential Information other than the limited right to review such Confidential Information solely for the purpose of determining whether to enter into the Relationship;
      3. requiring the disclosure of any Confidential Information, which shall be disclosed, if at all, solely at Discloser’s option;
      4. requiring any of the parties to proceed with the Relationship or any transaction in connection with which the Confidential Information may be disclosed;
      5. establishing any partnership, joint venture or any other joint or common undertaking between any of the parties;
      6. constituting any party the agent of another party;
      7. authorizing any party to make or enter into any commitments for or on behalf of any other party;
      8. obligating purchase of any service or item from the other party, or commercially offering any products using or incorporating the Confidential Information.

7. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

8. SUCCESSORS AND ASSIGNS.
   1. Neither shall this Agreement be assignable nor can its duties, rights and obligations be delegated, sub-contracted or dealt in any way with without the prior written consent of Discloser.
   2. Terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties, provided that Confidential Information of the Discloser may not be assigned without the prior written consent of the Discloser, unless the assignee shall be the successor entity to the assignor upon the dissolution of the assignor in its present form.
   3. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

9. AMENDMENT AND WAIVER.
   1. Any term of this Agreement may be amended with the written consent of all parties.
   2. Any amendment or waiver effected in accordance with this Section shall be binding upon the parties and their respective successors and assigns.
   3. Failure to enforce any provision of this Agreement by a party shall not constitute a waiver of any term hereof by such party.
   4. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement.

10. TERM AND TERMINATION.
    1. This Agreement's commitments of each party shall survive any termination of the Relationship between the parties, and shall continue for a period terminating:
       1. if Discloser sends the Recipient written notice releasing the Recipient from this Agreement, or;
       2. [five (5)] years following the date of this Agreement, or;
       3. [three (3)] years from the date on which Confidential Information is last disclosed under this Agreement.
    2. If either party decides not to become, or continue to be involved in the Relationship with the other party it shall notify the other party in writing immediately.
    3. Termination of this Agreement shall not affect any accrued rights or remedies to which either party is entitled.

11. SEVERABILITY.
    1. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith.
    2. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then:
       1. such provision shall be excluded from this Agreement;
       2. the balance of the Agreement shall be interpreted as if such provision were so excluded; and
       3. the balance of the Agreement shall be enforceable in accordance with its terms.

12. BREACH OF AGREEMENT.
    1. Recipient agrees and acknowledges that:
       1. obligations set forth in this Agreement are necessary and reasonable in order to protect Discloser and its business from irreparable harm caused by any violation or threatened violation by Recipient; and
       2. actual damages likely to result from any breach of this Agreement are difficult to estimate on the date of this Agreement and would be difficult for Discloser to prove.
    2. Injunctive Relief. If it appears that the Recipient has breached or has threatened to breach this Agreement, Discloser shall be entitled to an immediate injunction against the threatened breach of this Agreement or the continuation of any such breach by Recipient, in whole or in part, without the posting of any bond and without proof of actual damages.
    3. Liquidated Damages.
       1. In the event of a breach of any of the obligations of this Agreement, Recipient agrees to pay Discloser [$X] (“Liquidated Damage Amount”) for each unauthorized disclosure or circumvention.
       2. The parties intend that Recipient's payment of the Liquidated Damage Amount would serve to compensate Discloser for any breach of Recipient's obligations under this Agreement, and they do not intend for it to serve as punishment for any such breach by Recipient.
    4. Other Remedies.
       1. Nothing in the preceding Paragraphs shall be construed to limit or waive Discloser's remedies available at law, in equity or otherwise for any breach of Agreement. All such remedies shall be cumulative with all other rights and remedies available.
       2. Such remedies may be, but are not limited to, actual damages, compensation for unjust enrichment, a reasonable royalty rate, or exemplary damages.

13. ATTORNEY'S FEES. In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief awarded or granted, reasonable attorney's fees and costs incurred.

14. NO WARRANTY.
    1. The Recipient acknowledges and agrees that the Confidential Information is provided on an "AS IS" basis.
    2. THE Discloser MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITTNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE Discloser BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE CONFIDENTIAL INFORMATION.
    3. The Discloser does not represent or warrant that any product or business plans disclosed to the Recipient will be marketed or carried out as disclosed, or at all.
    4. Any actions taken by the Recipient in response to the disclosure of the Confidential Information shall be solely at the risk of the Recipient.

15. INDEMNITY. Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third party claims, demands, liabilities, costs and expenses, including reasonable attorney's fees, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and other reasonable costs and expenses suffered or incurred) resulting from the indemnifying party's material breach of any duty, representation, or warranty under this Agreement.

16. [RESTRICTIONS ON EXPORT. Recipient shall not export, directly or indirectly, any technical data acquired from Discloser pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.]

17. WHISTLEBLOWER PROTECTION. This Agreement is in compliance with the Defend Trade Secrets Act and provides civil or criminal immunity to any individual for the disclosure of trade secrets:
    1. made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney when the disclosure is to report or investigate suspected violations of the law; or
    2. in a complaint or other document filed in a lawsuit or other proceeding if made under seal.

18. NOTICES. All notices or other communication required to be given under this Agreement shall be in writing, shall be sent to either party at the physical or email address of the contact person specified below, or such other address or contact person as the respective party may specify from time to time in accordance with the provisions of this Agreement.

19. ENTIRE AGREEMENT. This Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining to confidentiality, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. Any and all other written or oral agreements existing between the parties hereto regarding confidentiality are expressly canceled.

20. JURISDICTION. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of [the United States of America and the State of California], without giving effect to principles of conflicts of law.

THE COMPANY: [Company Name]

By:

Name: [Company Representative Name] Title: [Company Representative Name] Address: [Company Representative Name] Email: [Company Representative Email] [Company Representative Signature].

COUNTERPARTY: [Counterparty Name]

By:

Name: [Counterparty Contact Name] Title: [Counterparty Contact Title] Address: [Counterparty Address] Email: [Counterparty Contact Email] [Counterparty Contact Signature].