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Contents

  1. Mutual Nondisclosure Agreement
  2. Purpose of Disclosure
  3. Confidential Information
    1. Exclusions from Confidential Information
      1. Public Information
      2. Otherwise Acquired Information
      3. Independently Developed Information
  4. Confidentiality Obligations
    1. Nondisclosure of Confidential Information
      1. Permitted Disclosure of Confidential Information
    2. Limited Use of Confidential Information
    3. Security Measures for Confidential Information
    4. Preserve Proprietary Notices in Confidential Material
    5. No Illegal Dealing in Securities Using Confidential Information
    6. No Reverse Engineering of Confidential Material
    7. Mitigate Legally Required Disclosure
      1. Give Notice of Legally Required Disclosure
      2. Reimburse Expenses of Cooperation in Mitigating Legally Required Disclosure
    8. Give Notice of Leaks of Confidential Information
    9. Return and Destruction of Confidential Information
      1. Records Retention Policy
    10. Comply with Export Controls for Confidential Information
    11. Confidentiality Compliance and Oversight
  5. Clarifications of Confidentiality Obligations
    1. No Obligation to Disclose Confidential Information
    2. No Obligation to Do Business
    3. No Warranty for Confidential Information
    4. Freedom to Operate
  6. 18 U.S.C. 1833(b) Notice
  7. Equitable Remedies for Breach of Confidentiality Obligations
  8. Survival of Confidentiality Obligations

Mutual Nondisclosure Agreement

Disclosing Party describes each party with respect to Confidential Information it discloses to the other party. Receiving Party describes each party with respect to Confidential Information it receives from the other party.

Purpose of Disclosure

The parties anticipate disclosure of Confidential Information for the Purpose.

Confidential Information

Subject to Exclusions from Confidential Information, Confidential Information means the following kinds of information:

information related to the business of Disclosing Party that Disclosing Party discloses to Receiving Party

the fact that the parties are pursuing the Purpose;

the terms of this agreement;

the fact that the parties have entered into this agreement; and

other information derived from these kinds of information.

Exclusions from Confidential Information

Public Information

Public information is not Confidential Information. Confidential Information that becomes public, other than as a result of breach of Confidentiality Obligations, ceases to be Confidential Information.

Otherwise Acquired Information

Information that Receiving Party receives other than from Disclosing Party is not Confidential Information, unless the disclosure breached a confidentiality obligation to Disclosing Party that Disclosing Party made known to Receiving Party.

Independently Developed Information

Information Receiving Party develops independently is not, or ceases to be, Confidential Information of Disclosing Party. Receiving Party shall bear the burden of proving independent development using contemporaneous documentary evidence.

Confidentiality Obligations

Nondisclosure of Confidential Information

Except as described in Permitted Disclosure of Confidential Information, Receiving Party shall not disclose Confidential Information to anyone.

Permitted Disclosure of Confidential Information

Receiving Party may disclose Confidential Information to the following personnel:

employees, independent contractors, officers, directors, and agents of Receiving Party (Personnel) who:

have a need to know the Confidential Information to advance the Purpose; and

have entered written confidentiality agreements with Receiving Party that impose confidentiality obligations, affording as much or more protection as those of Confidentiality Obligations, that apply to the Confidential Information; and

legal and financial advisers providing services to Receiving Party whose conduct is regulated by laws or professional rules that impose confidentiality obligations (Advisers).

Limited Use of Confidential Information

Receiving Party shall use Confidential Information only to advance the Purpose.

Security Measures for Confidential Information

Receiving Party shall take measures to secure materials embodying Confidential Information at least as protective as those Receiving Party employs to secure its own Confidential Information, but in any event no less than reasonable measures.

Preserve Proprietary Notices in Confidential Material

Receiving Party shall not remove any proprietary notices attached to materials embodying Confidential Information.

No Illegal Dealing in Securities Using Confidential Information

Receiving Party shall not break securities laws by purchasing, selling, or otherwise dealing in securities of Disclosing Party on the basis of material, nonpublic information. Receiving Party shall instruct anyone to whom it discloses Confidential Information that may be material, nonpublic information not to break securities laws by dealing in securities of Disclosing Party.

No Reverse Engineering of Confidential Material

Receiving Party shall not reverse engineer any material embodying Confidential Information.

Mitigate Legally Required Disclosure

The following obligations apply when the law requires disclosure of Confidential Information, and when Receiving Party reasonably expects that the law may require disclosure of Confidential Information.

Give Notice of Legally Required Disclosure

If legally permitted, Receiving Party shall promptly notify Disclosing Party of the nature of the requirement and the Confidential Information affected. If practical, Receiving Party shall give notice quickly enough to afford Disclosing Party practical chance to start a proceeding to protect the confidentiality of the Confidential Information. On Disclosing Party request, Receiving Party shall cooperate with Disclosing Party by providing reasonable assistance, on request from Disclosing Party.

Reimburse Expenses of Cooperation in Mitigating Legally Required Disclosure

Disclosing Party shall reimburse Receiving Party's reasonable out-of-pocket expenses of cooperating in any proceeding described in Give Notice of Legally Required Disclosure.

Give Notice of Leaks of Confidential Information

Receiving Party shall give Disclosing Party notice when Receiving Party becomes aware, suspects, or anticipates that Confidential Information has been or will be disclosed or used in breach of Confidentiality Obligations or other confidentiality agreements with Disclosing Party.

Return and Destruction of Confidential Information

Subject to Records Retention Policy, on termination of this agreement, Receiving Party shall promptly:

return all materials embodying Confidential Information that Disclosing Party provided with request to return; and

destroy all parts of other materials that embody Confidential Information.

Records Retention Policy

When this agreement terminates, if Receiving Party has a written records retention policy for the creation and scheduled destruction of archival or backup records, and only specialized personnel can routinely access those records, then Receiving Party may retain materials embodying Confidential Information until destroyed under that policy.

Comply with Export Controls for Confidential Information

Both parties shall comply with export and reexport laws with respect to Confidential Information.

Confidentiality Compliance and Oversight

Receiving Party shall ensure that its Personnel and Advisers abide by the confidentiality obligations of Receiving Party under Confidentiality Obligations. Breach of Receiving Party obligations by Receiving Party Personnel or Receiving Party Advisers will be deemed breach of Confidentiality Obligations by Receiving Party itself.

Receiving Party shall provide Disclosing Party copies of confidentiality agreements with Personnel who receive Confidential Information on Disclosing Party request.

Clarifications of Confidentiality Obligations

No Obligation to Disclose Confidential Information

Confidentiality Obligations does not obligate either party to disclose any Confidential Information.

No Obligation to Do Business

Confidentiality Obligations does not obligate either party to enter any business relationship or agreement, related to the Purpose or otherwise.

No Warranty for Confidential Information

Disclosing Party makes no warranty that Confidential Information will be complete or accurate.

Freedom to Operate

Confidentiality Obligations do not prohibit either party from:

competing with the other party;

entering into any business relationship with any non-party; or

assigning and reassigning Personnel and Advisers in its sole discretion.

18 U.S.C. 1833(b) Notice

rxnda/dtsa-notice/1e

An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that:

is made:

in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and

solely for the purpose of reporting or investigating a suspected violation of law; or

is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual:

files any document containing the trade secret under seal; and

does not disclose the trade secret, except pursuant to court order.

Equitable Remedies for Breach of Confidentiality Obligations

rxnda/equitable-remedies/1e

Breach of Confidentiality Obligations could cause irreparable harm that money damages could not adequately compensate. Either party will be entitled to seek injunctions, restraining orders, and other equitable remedies for breaches of Confidentiality Obligations, without posting bond or security, and without proving actual damages.

Survival of Confidentiality Obligations

Obligations under Confidentiality Obligations survive the term of this agreement for Confidential Information disclosed during the term for five calendar years from the date of termination.