This mutual nondisclosure agreement, is made by , a and the company signing as "Counterparty" in the context of the prospect of (the Business Opportunity). The parties agree:
Affiliates of a party means entities that directly or indirectly control, are controlled by, or are under common control with the party, where "control" means either:
the right to exercise 50% or more of the voting rights of an entity, such as a controlled corporation or limited liability company; or
the power to direct or cause the direction of the management or policies of any other controlled entity.
Confidential Information means, subject to the exceptions in Exclusions, any information or data, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a party to this agreement or any of its Affiliates, officers, directors, employees, advisers or representatives (Disclosing Party) to the other party to this agreement or any of its Affiliates, officers, directors, employees, advisers or representatives (Receiving Party) and that:
Disclosing Party has marked or identified as confidential or proprietary; or
Disclosing Party identifies as confidential in writing within 30 days of disclosure to Receiving Party
provided, however, that reports and/or information related to or regarding Disclosing Party's business plans, business methodologies, financial condition, projections, drafts of and comments to agreements exchanged between the parties, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers, billing records, and products or services will be deemed Confidential Information of Disclosing Party even if not so marked or identified, unless such information is the subject of any of the exceptions in Exclusions.
Confidential Information shall not include any information that:
is or becomes available to the public (other than as a result of disclosure by Receiving Party prohibited by this agreement);
is made available to Receiving Party by a third party who lawfully possesses such information, and who is not in violation of any confidentiality obligation benefitting Disclosing Party; or
Receiving Party can show by written record was available to or possessed by Receiving Party (free of any confidentiality obligation benefiting Disclosing Party known to Receiving Party when disclosed or made available) before disclosure of such information by Disclosing Party to Receiving Party, provided that the Receiving Party must promptly notify the Disclosing Party of any prior knowledge in the manner provided in Breach Notice.
Use and Disclosure of Confidential Information
Receiving Party shall only use the Confidential Information internally solely for the purpose of the Business Opportunity. Receiving Party shall keep confidential and shall not, without the prior written consent of Disclosing Party, directly or indirectly, disclose, publish, divulge, furnish, or make accessible to anyone all or any portion of the Confidential Information, other than furnishing such Confidential Information to:
Receiving Party's employees and consultants, and the employees and consultants of Receiving Party's Affiliates, who are required to have access to such Confidential Information in connection with the Business Opportunity; and
Receiving Party's professional advisers (e.g., lawyers and accountants)
in each case, during the time that Receiving Party is permitted to retain such Confidential Information under this agreement; provided, that any such employees and consultants are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in as required by this agreement.
Receiving Party shall use at least reasonable care and adequate measures to protect the confidentiality of the Confidential Information of Disclosing Party and to ensure that any Confidential Information of Disclosing Party is not disclosed or otherwise made available to other people or used in violation of this agreement. Such measures shall be at least equal the measures Receiving Party uses to protect Receiving Party's own most valuable proprietary information.
If the law requires Receiving Party to make any disclosure of any of the Confidential Information of Disclosing Party, by subpoena, judicial or administrative order or otherwise, Receiving Party shall give written notice of such requirement to Disclosing Party first, let Disclosing Party intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and help to Disclosing Party in seeking that protection.
Receiving Party agrees to notify Disclosing Party promptly in writing if:
Receiving Party becomes aware of any breach of this agreement with respect to the Confidential Information of Disclosing Party in Receiving Party's possession;
after disclosure of any Confidential Information by Disclosing Party, information is disclosed to Receiving Party in the manner described in Exclusions; or
to the extent that the Receiving Party can make such notification without violating any confidentiality agreement by which Receiving Party is bound, on disclosure of Confidential Information by Disclosing Party, Receiving Party has prior knowledge of the same.
Without the prior written consent of Disclosing Party, Receiving Party shall not embody any of the Confidential Information of Disclosing Party in any of Receiving Party's products, processes or services, or copy or exploit any of such Confidential Information in Receiving Party's business, or otherwise use any of the Confidential Information for any purpose other than for the Business Opportunity.
Each party to this agreement shall be responsible for the performance of each of its Affiliates under this agreement, and each party to this agreement and its Affiliates shall be in direct privity under this agreement with the other party to this agreement and its Affiliates.
Certain Rights and Limitations
All Confidential Information shall remain the property of Disclosing Party. The provision of Confidential Information under this agreement shall not transfer any right, title or interest in such information to Receiving Party. Disclosing Party does not grant Receiving Party any express or implied right to or under Disclosing Party's or another party's patents, copyrights, trademarks, trade secret information or other proprietary rights.
Receiving Party shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential Information it obtains from Disclosing Party.
This agreement imposes no obligations on either party to this agreement or its Affiliates to exchange any Confidential Information.
All tangible embodiments of the Confidential Information of Disclosing Party (e.g., drawings, memoranda and notes) and all copies of embodiments, whether in hard-copy or machine-readable form and whether supplied by Disclosing Party or made by or for Receiving Party (collectively, the Tangible Embodiments), remain the exclusive property of Disclosing Party.
On Disclosing Party's request, Receiving Party shall certify that access and use is being controlled in accordance with this agreement.
Receiving Party acknowledges that a breach by it of any of the terms of this agreement would cause irreparable harm to Disclosing Party for which Disclosing Party could not be adequately compensated by money damages. Accordingly, Receiving Party agrees that, in addition to all other remedies available to Disclosing Party in an action at law, in the event of any breach or threatened breach by Receiving Party of the terms of this agreement, Disclosing Party shall, without the necessity of proving actual damages or posting any bond or other security, be entitled to temporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this agreement.
This agreement is effective commencing on the date of this agreement and will remain in effect for three years following the date of this agreement. The terms and conditions of this agreement will survive any expiration or termination of this agreement with respect to Confidential Information that is disclosed before the effective date of expiration or termination.
Return or Destruction
On the earlier of:
the expiration or termination of this agreement;
Disclosing Party's written request; or
such time as Receiving Party no longer requires the Confidential Information for the Business Opportunity
Receiving Party agrees to promptly return to Disclosing Party or destroy all Confidential Information and any Tangible Embodiments that are in the possession of Receiving Party and to certify the return or destruction of all such Confidential Information and embodiments.
Notwithstanding Return or Destruction:
Receiving Party may retain a copy of any Confidential Information or Tangible Embodiments to the extent that such retention is required to comply with applicable law or to comply with a document retention policy of Receiving Party, provided that any such information so retained shall be held confidential pursuant to the terms of this agreement.
Notwithstanding Required Retention, Receiving Party shall return or destroy any Confidential Information or Tangible Embodiments that Disclosing Party requests in writing to be returned to Disclosing Party or destroyed.
No warranty is made by either party under this agreement. Any information exchanged under this agreement is provided as-is.
Governing Law; Jurisdiction
This agreement shall be governed by and construed in accordance with the laws of the State of California governing such agreements, without regard to conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this agreement shall be state courts sitting in San Francisco County, California, or the federal courts in the Northern District of California, and the parties agree not to raise, and waive, any objections or defenses based on venue or forum non conveniens with respect to such courts.
This agreement does not create any agency or partnership relationship between the parties to this agreement. This agreement contains the complete and exclusive agreement of the parties with respect to the subject matter of this agreement and supersedes all prior agreements and understandings whether written or oral, express, or implied. Except where expressly indicated otherwise, the words "written" or "in writing" include written or printed documents, in any format now know or later developed including electronic and facsimile transmissions and computer disks or tapes. If any provision of this agreement is held invalid, illegal, or unenforceable by a court of competent jurisdiction, that will not affect any other provision of this agreement, which shall remain in full force and effect. No amendment or alteration of the terms of this agreement will be effective unless made in writing and signed by both parties to this agreement. A failure or delay in exercising any right in respect to this agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right shall not be presumed to preclude any later or further exercise of that right or the exercise of any other right. Any change or waiver of any provision of this agreement will not be effective unless made in writing. Any such waiver will be effective only in the specific instance and for the purpose given. This agreement binds the parties and their respective legal representatives, employees, agents, successors, and assigns.