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Contents

  1. Agreement
    1. Parties and Date
    2. Background
    3. Agreement on Published Terms
    4. The Published Terms Control
  2. Agreement-Specific Terms
  3. The Terms of this Agreement are Mutual
  4. Obligations
    1. Nondisclosure and Prohibited Use
      1. No Prohibited Disclosure
      2. No Prohibited Use
      3. No Wrongful Disclosure
      4. No Wrongful Use
      5. No Disclosure About this Agreement
      6. No Disclosure About the Mutual Opportunity
    2. Protection of Confidentiality
      1. Reasonable Precautions
      2. Better Precautions
      3. No Removal of Proprietary Markings
      4. No Reverse Engineering
    3. Responsibility for Representatives
      1. Indemnify for Misuse or Disclosure by Representative
      2. Indemnification In Addition to Other Remedies
    4. Legally Required Disclosure
      1. Notice of Anticipated Legally Required Disclosure
      2. Prior Notice of Legally Required Disclosure
      3. Cooperation to Prevent Legally Required Disclosure
      4. Reimbursement of Expenses of Cooperation
    5. Destruction of Copies
      1. Destruction of Copies Generally
      2. Destruction of Copies per a Document Retention Policy
    6. Leaks
      1. Notice of Leaks
      2. Cooperation to Mitigate Leaks
      3. Reimbursement of Expenses of Leak Mitigation
    7. Communication
      1. Notice Confirmation
      2. Notice of Emergency
  5. Definitions
    1. Legal Persons
    2. Dates and Time Periods
    3. Kinds of Information
    4. Disclosure and Use
    5. Miscellaneous Definitions
  6. Remedies
    1. Equitable Remedies
    2. Bond and Security Waiver
    3. Losing Party Pays Expenses
    4. Copyright Licenses
  7. Clarifications
    1. No Obligation to Disclose
    2. No Obligation to Accept Information
    3. No Intellectual Property License
    4. No Obligation to Do Business
    5. No Guarantee of Accuracy
    6. No Obligation of Strict Performance in an Emergency
    7. Reform of Unenforceable Provisions
  8. General Contract Provisions
    1. Legal Relationship
      1. Independent Contractors
      2. No Agency
    2. Assignment
      1. Assignment with Consent
      2. Assignment without Consent
      3. Prohibited Assignment is Void
    3. Delegation
      1. Delegation with Consent
      2. Prohibited Delegation is Void
    4. Disputes
      1. No Third-Party Beneficiaries
      2. Governing Law
      3. Where to Litigate
      4. Forum Waiver
      5. Venue Waiver
      6. Jury Trial Waiver
    5. No Implied Waivers
    6. Documentation
      1. Entire Agreement
      2. Written and Signed Amendments
      3. Electronic Execution

Agreement

Parties and Date

This agreement (this Agreement) is made by its two signatories (each a Party and together the Parties) as of the date of the last of their signatures (the Agreement Date).

Background

The Parties are exploring the Mutual Opportunity and anticipate exchanging information.

Agreement on Published Terms

This Agreement is on the terms of the (with Common Form cryptographic fingerprint beginning ...) as published at (the Published Terms), together with the agreement-specific terms of Agreement-Specific Terms.

The Published Terms Control

The Published Terms are reproduced in this document for convenience only. If the terms reproduced in this document differ from the Published Terms, the Published Terms control.

Agreement-Specific Terms

Mutual Opportunity means .

Recipient Veto Period means calendar days.

Copy Destruction Period means calendar days.

Retention Policy Destruction Period means months.

Maximum Disclosure Period means years.

Confidentiality Period means years.

Governing Law State means .

Circuit for Disputes means the Circuit of the United States Courts of Appeals.

City for Disputes means .

The Terms of this Agreement are Mutual

Each provision of this Agreement creates the same rights, remedies, and obligations for each Party.

Obligations

Nondisclosure and Prohibited Use

No Prohibited Disclosure

Neither Party shall disclose information that is then Confidential Information of the other Party within its Confidentiality Term to any Third Party, except to an Authorized Recipient or as Legally Required Disclosure.

No Prohibited Use

Neither Party shall use information that is then Confidential Information of the other Party within its Confidentiality Term for any purpose but the Mutual Opportunity.

No Wrongful Disclosure

Neither Party shall disclose to the other Party or any Third Party any information in violation of any duty, law, regulation, or order of a Government Authority.

No Wrongful Use

Neither Party shall Utilize any Confidential Information of the other Party in violation of any duty, law, regulation, or order of a Government Authority.

No Disclosure About this Agreement

Neither Party shall disclose the existence or content of this Agreement to any Third Party during the Confidentiality Term while such information is not publicly known, except to an Authorized Recipient or as Legally Required Disclosure.

No Disclosure About the Mutual Opportunity

Neither Party shall disclose that any discussion or work related to the Mutual Opportunity is ongoing to any Third Party during the Confidentiality Term while such information is not publicly known, except to an Authorized Recipient or as Legally Required Disclosure.

Protection of Confidentiality

Reasonable Precautions

Each Party shall take precautions to prevent unauthorized use and disclosure of Confidential Information of the other Party at least as effective as those an ordinarily prudent Third Party in similar circumstances would, but at least reasonable precautions.

Better Precautions

A Party that takes better than reasonable precautions to prevent unauthorized use and disclosure of its own Confidential Information must take such precautions for the Confidential Information of the other Party.

No Removal of Proprietary Markings

Neither Party shall remove any marking from any material provided by the other Party indicating ownership or confidential nature.

No Reverse Engineering

Neither Party shall reverse engineer or otherwise attempt to discern the design, source code, or method of operation of any electronic hardware or software included in any Confidential Disclosure of the other Party.

Responsibility for Representatives

Indemnify for Misuse or Disclosure by Representative

Each Party (as Indemnitor) shall indemnify the other Party (as Indemnitee) against any loss or liability arising out of disclosure or use by any Representative of Indemnitor of the Confidential Information of Indemnitee that is not authorized by this Agreement.

Indemnification In Addition to Other Remedies

The right of a Party to indemnification per Indemnify for Misuse or Disclosure by Representative is in addition to, not exclusive of, any other remedies available to that Party.

Legally Required Disclosure

Notice of Anticipated Legally Required Disclosure

Each Party shall provide prompt Notice on determination that any Legally Required Disclosure will be required. Notice shall identify the law that may require disclosure, the Confidential Information (or a detailed summary of Confidential Information) the law may require be disclosed, and the Legal Person to which law may require the information be disclosed.

Prior Notice of Legally Required Disclosure

Each Party shall provide Notice before making any Legally Required Disclosure.

Cooperation to Prevent Legally Required Disclosure

Each Party shall cooperate with the other Party in any proceeding brought to prevent or limit Legally Required Disclosure of Confidential Information of the other Party.

Reimbursement of Expenses of Cooperation

Each Party shall reimburse the other Party its reasonable expenses of compliance with Cooperation to Prevent Legally Required Disclosure as Recipient.

Destruction of Copies

Destruction of Copies Generally

Each Party shall destroy all copies of Confidential Information of the other Party, other than Backup Copies, Counsel Copies, and copies destroyed per Destruction of Copies per a Document Retention Policy, within the Copy Destruction Period following the Disclosure Term.

Destruction of Copies per a Document Retention Policy

If the document retention policy of a Party requires destruction of Confidential Information of the other Party within the Retention Policy Destruction Period following the Disclosure Term, the Party may destroy all copies of such Confidential Information, other than Backup Copies and Counsel Copies, per that document retention policy.

Leaks

Notice of Leaks

Each Party shall provide prompt Notice on learning of any Leak of the Confidential Information of the other Party.

Cooperation to Mitigate Leaks

Each Party shall cooperate in mitigating the adverse consequences of any Leak of the Confidential Information of the other Party.

Reimbursement of Expenses of Leak Mitigation

Each Party (as Affected Party) shall reimburse the other Party (as Cooperating Party) reasonable expenses of compliance with Cooperation to Mitigate Leaks for any Leak of the Confidential Information of Affected Party not caused by breach of this Agreement by Cooperating Party.

Communication

Notice Confirmation

Each Party shall confirm receipt of any Notice on receipt.

Notice of Emergency

Each Party shall provide notice of any Emergency that has or may impede performance of obligations under this Agreement as soon as reasonably possible.

Definitions

Legal Persons

Legal Person means a natural person, corporation, partnership, trust, limited liability company, association, or other legal entity.

Affiliate means any Legal Person that another Legal Person has Control over, is under the Control of, or is under common Control with.

Control means direct or indirect possession of the power to direct or cause the direction of the management and policies of a Legal Person, such as by vote or contract.

Third Party means a Legal Person that is not a Party or a Representative of a Party.

Contractor means a Third Party independent contractor of a Party that provides services relating to the Mutual Opportunity.

Representative means, of a Legal Person, any director, officer, or employee of that Legal Person.

Authorized Recipient means, of a Confidential Information, any Legal Person with a Confidentiality Obligation for that Confidential Information that matches one or more of the following descriptions.

The Legal Person is a Representative of Recipient with a Need to Know.

The Legal Person is a Representative of an Affiliate of Recipient with a Need to Know that has been Cleared for Disclosure.

The Legal Person is a natural person and a Contractor of Recipient with a Need to Know that has been Cleared for Disclosure.

The Legal Person is a Representative of a Contractor of Recipient with a Need to Know that has been Cleared for Disclosure.

Need to Know means need of a Legal Person to know some Confidential Information for purposes of the Mutual Opportunity.

Confidentiality Obligation means that a Legal Person is and will be legally obligated, by contract, professional responsibility, or fiduciary duty, to protect the confidentiality of some Confidential Information throughout its Confidentiality Term.

Proposed Recipient Notice means Notice by the Recipient of some Confidential Information naming a natural person, describing the relationship between Recipient and that natural person, and proposing to disclose Confidential Information to that natural person.

Cleared for Disclosure means that Recipient has given Proposed Recipient Notice for a natural person at least one Recipient Veto Period in advance of disclosing any Confidential Information to that natural person, and that Discloser has not later given Notice that Confidential Information shall not be disclosed to that natural person.

Government Authority means a Government, an instrumentality of a Government, or a Legal Person authorized by law to perform any executive, legislative, judicial, regulatory, administrative, military, or police function of a Government.

Government means the government of a country or political subdivision of a country.

Dates and Time Periods

Disclosure Term means the period beginning on the Agreement Date and ending on the first of the following events.

The Disclosure Term ends on the day that is a Maximum Disclosure Period after the Agreement Date.

The Disclosure Term ends on the future date on which Notice states the Disclosure Term will end.

The Disclosure Term ends on delivery of Notice that the Disclosure Term ends immediately.

Disclosure Date means, of Confidential Disclosure, the date when that Confidential Disclosure was disclosed, and, of Derived Confidential Information, the latest Disclosure Date of any Confidential Disclosure or Derived Confidential Information from which that Derived Confidential Information was derived.

Confidentiality Term means the period beginning on the Disclosure Date of Confidential Information and ending after a Confidentiality Period.

Kinds of Information

Confidential Information means Confidential Disclosure and Derived Confidential Information.

Confidential Disclosure means Marked Information, other than Public Information, Previously Received Information, or Independently Developed Information, that one Party (Discloser) discloses to the other Party (Recipient) during the Disclosure Term.

Marked Information means either of the following.

Information disclosed in written form that is marked "Confidential", "Proprietary", or "Privileged".

Information disclosed by any means that Discloser confirms by later Notice is "Confidential", "Proprietary", or "Privileged".

Public Information means public information that did not become public due to breach of this Agreement.

Previously Received Information means information previously received by a Representative of Recipient other than in breach of a duty or obligation to Discloser to maintain the confidentiality of that information of which a Representative of Recipient was then aware.

Independently Developed Information means information that Recipient developed independently.

Derived Confidential Information means recorded information that a Recipient wholly or partly derived from Confidential Disclosure of Discloser, other Derived Confidential Information of Discloser, or both.

Disclosure and Use

Legally Required Disclosure means disclosure of Confidential Information that is required by law, solely to the extent required by law.

Counsel Copies means copies of Confidential Information retained by legal counsel of a Recipient for verification of compliance.

Backup Copies means copies of Confidential Information stored in backup media accessible only to information technology personnel of a Recipient.

Utilize means to use or act on the basis of Confidential Information, or to instruct, enable, or assist any Third Party to use or act on the basis of that Confidential Information.

Leak means disclosure or use of Confidential Information by a Party or Third Party that is not authorized by this Agreement.

Miscellaneous Definitions

Notice means written communication to a Party by electronic mail to its Designated Address.

Designated Address means the address provided by a Party together with its signature to this Agreement, or, alternatively, any other address that Party gives Notice should be used for future Notice.

Emergency means fire, flood, earthquake, element of nature, act of god, declared or undeclared war, terrorist act, sabotage, riot, civil disorder, rebellion, revolution, or like catastrophe beyond the control of the Parties.

Emergency Response means response of a Government Authority to an Emergency.

Proceeding means an adversarial proceeding relating to this Agreement and the exchange, disclosure, use, and protection of Confidential Information.

Prevailing Party means a Party that receives a Definitive Ruling in its favor against the other Party on all claims asserted between them that are not settled or voluntarily dismissed.

Definitive Ruling means, of a Proceeding that is not appealed, a final judgment rendered in that Proceeding, or, of a Proceeding that is appealed, a final decision in that Proceeding.

Remedies

Equitable Remedies

Breach of this Agreement by either Party would cause irreparable harm to the other Party not adequately compensable with money damages.

Neither Party shall object to any request of the other Party for an equitable remedy, such as an injunction or restraining order, for breach or threatened breach of this Agreement.

Bond and Security Waiver

Neither Party shall assert that the other Party must provide security, such as a bond, or proof of actual damages before exercising any remedy granted consistent with Equitable Remedies.

Losing Party Pays Expenses

Each Party shall pay all expenses, such as legal fees and expenses, incurred by the other Party as Prevailing Party in any Proceeding.

Copyright Licenses

Each Party (as Licensor) grants the other Party (as Licensee) a worldwide, royalty-free, nonexclusive, nonsublicensable, and nontransferable license during the Disclosure Term to do each of the following, in each case as needed for purposes of the Mutual Opportunity.

Licensee may reproduce Confidential Disclosure of Licensor in copies.

Licensee may create "derivative works" (as defined by the Copyright Act of 1976) of Confidential Disclosure.

Clarifications

No Obligation to Disclose

This Agreement does not obligate either Party to disclose any information to the other Party.

No Obligation to Accept Information

This Agreement does not obligate either Party to accept any information offered by the other Party.

No Intellectual Property License

This Agreement does not grant either Party any license in the intellectual property of the other Party.

No Obligation to Do Business

This Agreement does not obligate either Party to do the Mutual Opportunity or any other business with any Legal Person.

No Guarantee of Accuracy

Neither Party guarantees that any Confidential Disclosure will be accurate or complete.

No Obligation of Strict Performance in an Emergency

No Party breaches this Agreement by default or delay caused by an Emergency or Emergency Response that, in either case, could not be circumvented by commercially reasonable means.

Reform of Unenforceable Provisions

The Parties intend every provision of this Agreement to be legally enforceable.

If a provision is found unenforceable but could be modified to make it enforceable, the Parties intend to be bound by that provision as modified to the minimum extent necessary to make it enforceable.

If a provision is found unenforceable and cannot be modified to make it enforceable, the Parties intend that provision be excised from this Agreement.

General Contract Provisions

Legal Relationship

Independent Contractors

This Agreement creates only an independent contractor relationship, and not any other kind of relationship such as employment, agency, partnership, or legal representation.

No Agency

This Agreement does not grant either Party any ability to create legal obligations for the other Party.

Assignment

Assignment with Consent

Except per Assignment without Consent, neither Party shall assign any rights or licenses under this Agreement, whether voluntarily, involuntarily, by merger, consolidation, dissolution, operation of law, or otherwise, without the prior written consent of the other Party,

Assignment without Consent

A Party may assign this Agreement and the license granted to that Party per Copyright Licenses without the prior written consent of the other Party to any Third Party that both obtains Control of the assigning Party after the Agreement Date and assumes all the rights and obligations of the assigning Party under this Agreement.

Prohibited Assignment is Void

Any purported assignment of rights in breach of this Agreement is void.

Delegation

Delegation with Consent

Neither Party shall delegate any performance under this Agreement without the prior written consent of the other Party.

Prohibited Delegation is Void

Any purported delegation of performance in breach of this Agreement is void.

Disputes

No Third-Party Beneficiaries

This Agreement does not confer any legal rights or remedies on any Third Party.

Governing Law

The law of Governing Law State, except its conflict of law principles, will govern any Proceeding.

Where to Litigate

Each Party shall bring any Proceeding within the appellate jurisdiction of the Circuit for Disputes, or, if there is no federal subject matter jurisdiction, in any state court sitting in the City for Disputes.Submission to Jurisdiction

Neither Party shall object to the exclusive jurisdiction of any court in which a Proceeding is brought per Where to Litigate.

Forum Waiver

Neither Party shall assert that venue is improper in any Proceeding brought per Where to Litigate.

Venue Waiver

Neither Party shall assert that forum is inconvenient in any Proceeding brought per Where to Litigate.

Jury Trial Waiver

Neither Party shall assert its right to a trial by jury in any Proceeding.

No Implied Waivers

Neither Party shall assert that the exercise of any right under this Agreement, or the waiver of any breach of this Agreement, prevents any later claim for breach.

Documentation

Entire Agreement

This Agreement embodies the entire understanding of the Parties on the subject matter of this Agreement, and supersedes all other agreements on that subject matter, written or not, between the Parties.

Written and Signed Amendments

Neither Party shall assert that any purported amendment to this Agreement is effective unless it is both written and signed by both Parties.

Electronic Execution

Transmission of electronically signed copies of this Agreement will be as effective as delivery of manually executed counterparts.