Mutual Non-Disclosure Agreement
This Mutual Non-Disclosure Agreement (the "Agreement") is entered into as of [Effective Date] (the "Effective Date") by and between [First Party name], [entity type and state, e.g. a Delaware corporation] ("First Party") and [Second Party name], [entity type and state, e.g. a Delaware corporation] ("Second Party"). Each is a "Party" and together they are the "Parties."
1. Purpose
The Parties wish to exchange information in connection with evaluating a possible business relationship between the parties (the "Purpose"). Each Party may act as a Disclosing Party and as a party receiving information (the "Receiving Party").
2. Confidential Information
"Confidential Information" means any non-public information disclosed by a Party disclosing information (the "Disclosing Party") to the Receiving Party, in any form (written, oral, electronic, or by inspection), that is marked or identified as confidential or that a reasonable person would understand to be confidential given its nature and the circumstances of disclosure. It includes business plans, products, pricing, customers, suppliers, finances, technology, software, designs, and know-how.
3. Exclusions
Confidential Information does not include information that the Receiving Party can show: (a) is or becomes publicly available through no breach of this Agreement; (b) was lawfully known to the Receiving Party before disclosure, without a duty of confidentiality; (c) is lawfully received from a third party who is not under a duty of confidentiality; or (d) is independently developed by the Receiving Party without use of or reference to the Confidential Information.
4. Obligations
The Receiving Party will: (a) use the Confidential Information only for the Purpose; (b) not disclose it to anyone except its employees, officers, advisors, and professional representatives who need to know it for the Purpose and who are bound by confidentiality obligations at least as protective as this Agreement; and (c) protect it using at least the same degree of care it uses for its own confidential information, and no less than reasonable care. The Receiving Party is responsible for any breach by persons to whom it discloses Confidential Information.
The Receiving Party will promptly notify the Disclosing Party after becoming aware of any unauthorized use or disclosure.
5. Legally Required Disclosure
If the Receiving Party is required by law, regulation, or court order to disclose Confidential Information, it may do so, provided that (where legally permitted) it gives the Disclosing Party prompt notice and reasonable help to seek a protective order, and discloses only the portion legally required.
6. Protected Rights
Nothing in this Agreement prohibits or restricts any Party or individual from: (a) reporting a possible violation of law to, filing a charge or complaint with, or communicating with, providing information to, or participating in an investigation by any government agency or official (including the Securities and Exchange Commission, the Equal Employment Opportunity Commission, the National Labor Relations Board, and the Occupational Safety and Health Administration) without notice to the other Party; (b) testifying truthfully in any legal proceeding; (c) disclosing information as required by law; or (d) discussing or disclosing information about sexual assault, sexual harassment, discrimination, or other conduct that the individual reasonably believes to be unlawful, to the extent such rights cannot be waived under applicable law, including the federal Speak Out Act (42 U.S.C. § 19401 et seq.).
Notice of immunity under the Defend Trade Secrets Act (18 U.S.C. § 1833(b)): 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 (a) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (b) 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 individual's attorney 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.
7. Term
This Agreement covers disclosures made during the three (3) years following the Effective Date, unless either Party ends it earlier by written notice. Each Receiving Party's obligations for information disclosed during that period continue for three (3) years after the Agreement ends. For any Confidential Information that is a trade secret under applicable law, these obligations continue for as long as it remains a trade secret.
8. Return or Destruction
On the Disclosing Party's written request, the Receiving Party will promptly return or destroy all Confidential Information in its possession and, if requested, confirm this in writing. The Receiving Party may keep copies stored in routine electronic backups or required by law, which remain subject to this Agreement.
9. No License; No Warranty
All Confidential Information remains the property of the Disclosing Party. Nothing in this Agreement grants any license or right under any patent, copyright, trademark, or trade secret, except the limited right to use Confidential Information for the Purpose. Confidential Information is provided "as is," without warranty of any kind.
10. No Obligation
Neither Party is obligated to enter into any further agreement or transaction. Each Party may end discussions at any time.
11. Remedies
Unauthorized use or disclosure of Confidential Information may cause the Disclosing Party irreparable harm for which money damages would be inadequate. The Disclosing Party may seek injunctive or other equitable relief, in addition to any other remedy available at law, without having to prove actual damages to the extent permitted by law.
12. General
Governing law. This Agreement is governed by the laws of [State or country], without regard to its conflict-of-laws rules.
Entire agreement. This Agreement is the Parties' entire agreement about its subject matter and replaces any prior understanding on that subject. It may be changed only in a writing signed by both Parties.
Severability. If any provision is found unenforceable, it will be enforced to the maximum extent permitted and the rest of the Agreement will remain in effect.
Assignment. Neither Party may assign this Agreement without the other's written consent, except to a successor in a merger or sale of substantially all of its relevant business.
Counterparts and signatures. This Agreement may be signed in counterparts and by electronic signature, each of which is an original.
IN WITNESS WHEREOF, the Parties have signed this Agreement as of the Effective Date.
[First Party name] Name: [Signatory name]
Title: [Title]
Date: ____________
[Second Party name] Name: [Signatory name]
Title: [Title]
Date: ____________