Sample Non-Disclosure Agreement

This Nondisclosure Agreement (the “Agreement”) is entered into by and between ______________ with its principal offices at _______________, (“Disclosing Party”) and ______________, located at ______________ (“Receiving Party”) for the purpose of preventing the unauthorized disclosure of Confidential Information as defined below. The parties agree to enter into a confidential relationship with respect to the disclosure of certain proprietary and confidential information (“Confidential Information”).

1. Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” shall include all information or material that has or could have commercial value or other utility in the business in which Disclosing Party is engaged, including intellectual property. If Confidential Information is in written form, the Disclosing Party shall label or stamp the materials with the word “Confidential” or some similar warning. If Confidential Information is transmitted orally, the Disclosing Party shall promptly provide written indication that such oral communication constituted Confidential Information.
2. Exclusions from Confidential Information. Receiving Party’s obligations under this Agreement do not extend to information that is: (a) publicly known at the time of disclosure or subsequently becomes publicly known through no fault of the Receiving Party; (b) discovered or created by the Receiving Party before disclosure by Disclosing Party; (c) learned by the Receiving Party through legitimate means other than from the Disclosing Party or Disclosing Party’s representatives; or (d) is disclosed by Receiving Party with Disclosing Party’s prior written approval.
3. Obligations of Receiving Party. Receiving Party shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of the Disclosing Party. Receiving Party shall carefully restrict access to Confidential Information to employees, contractors and third parties as is reasonably required and shall require those persons to sign nondisclosure restrictions at least as protective as those in this Agreement. Receiving Party shall not, without prior written approval of Disclosing Party, use for Receiving Party’s own benefit, publish, copy, or otherwise disclose or disseminate to others, or permit the use by others for their benefit or to the detriment of Disclosing Party, any Confidential Information. Receiving Party shall return to Disclosing Party any and all records, notes, and other written, printed, or tangible materials in its possession pertaining to Confidential Information immediately if Disclosing Party requests it in writing.
4. Time Periods. The nondisclosure provisions of this Agreement shall survive the termination of this Agreement and Receiving Party’s duty to hold Confidential Information in confidence shall remain in effect until the Confidential Information no longer qualifies as a trade secret or until Disclosing Party sends Receiving Party written notice releasing Receiving Party from this Agreement, whichever occurs first.
5. Relationships. Nothing contained in this Agreement shall be deemed to constitute a partnership or joint venture and neither party an employee of the other party for any purpose.
6. Severability. If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall remain in force and shall be interpreted so as best to effect the intent of the parties.
7. Integration. This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations and understandings. This Agreement may not be amended except in a writing signed by both parties.
8. Waiver. The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
9. Notice of Immunity [optional]. Employee is provided notice that 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 (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) 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 (i) files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order.

This Agreement and each party’s obligations shall be binding on the representatives, assigns and successors of such party. Each party has signed this Agreement through its authorized representative.

Non-Circumvention Agreements

A non-circumvention agreement is used to protect the ideas and opportunities under a business deal. It generally provides that each party shall mutually use the other party’s information only for the purpose of pursuing a business relationship between the parties. In the event the parties elect not to pursue a business relationship, neither party shall make any use of the other party’s information. It is often signed together with a non-disclosure and confidentiality agreement.

Sample Mutual Non-Circumvention, Confidentiality Agreement

This Agreement is effective when signed by and between _______________________________ and _______________________________, collectively referred to as the “Parties.”

This agreement is intended to create a mutually beneficial business relationship between the Parties during the stages of information exchange and provision of services that are required to establish and set the stage for a real and tangible joint business opportunity.

The Parties desire to disclose, on a confidential basis, certain information, intellectual property (including ideas, stories, screenplays, proprietary characters, whether written or oral), business contacts and documents considered confidential and/or proprietary by the Parties concerning their respective businesses. The Parties wish to maintain the confidentiality and/or the proprietary nature of the confidential information disclosed.

In consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereto agree as follows:

• 1) Confidential Information: The Parties agree that information disclosed orally or in writing or made available by any Party (“Disclosing Party”) to another Party (“Recipient”), including, but not limited to, information acquired from employees; trade secrets; strategic plans; development plans and disclosures; client information; distribution channels; marketing studies; intellectual property; information relating to process, business plans, business opportunities, marketing plans, finances, research, development, know-how or personnel; confidential information originally received from third parties; information relating to any type of technology, and all other material whether written or oral, tangible or intangible, shall be deemed “Confidential Information.” In addition, the existence and terms of this Agreement shall also be treated as Confidential Information. The parties agree that any Confidential Information disclosed prior to the execution of this Agreement was intended to be and shall be subject to the terms and conditions of this Agreement.
• 2) Restrictions and Exceptions: The Parties agree to maintain the confidentiality of the Confidential Information and to prevent its unauthorized dissemination or use for a period of two (2) years from the date of last disclosure by the Disclosing Party, subject to the exceptions enumerated in Section 4 of this Agreement.
• 3) Recipients’ Obligations: The parties expressly agree that the Recipient shall not use Confidential Information in the development of any products or services for its own account or for the account of a third party unless expressly agreed to by the Disclosing Party in writing. Further, the Parties agree not to use the Confidential Information for purposes other than that necessary to consider the possibility of entering into a business relationship or transaction between the Parties. The Recipient shall protect the Confidential Information by using the same degree of care, but no less than reasonable care, to prevent the unauthorized use, dissemination or publication of the Confidential Information as the Recipient uses to protect its own Confidential Information. The Recipient shall limit its internal disclosure of the Confidential Information to only those employees and agents who have a need to know the information for the limited purpose of the proposed business relationship between the Parties. The Parties agree that they will each direct their respective employees and agents to maintain the confidentiality of the Confidential Information. The obligation not to disclose shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against Recipient, nor by the rejection of any agreement between the Disclosing Party and Recipient, by a trustee of Recipient in bankruptcy, or by the Recipient as a debtor-in-possession or the equivalent of any of the foregoing under local law.
• 4) Exceptions: This Agreement shall impose no obligations with respect to Confidential Information which:
  • a) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public;
  • b) was acquired by the receiving party before receiving such information from the disclosing party and without restriction as to use or disclosure;
  • c) is hereafter rightfully furnished to the receiving party by a third party, without restriction as to use or disclosure;
  • d) is information which the receiving party can document was independently developed by the receiving party;
  • e) is required to be disclosed pursuant to law, provided the receiving party uses reasonable efforts to give the disclosing party reasonable notice of such required disclosure; or
  • f) is disclosed with the prior written consent of the disclosing party.

  Additionally, in the event of a disclosure required pursuant to a requirement of a governmental agency or law, the Party seeking to disclose Confidential Information will provide to the Disclosing Party notice prior to such disclosure in order to afford the Disclosing Party a reasonable opportunity to file objections to the disclosure with the appropriate agency or entity.

• 5) Continued Development Efforts: The Parties acknowledge and agree that all parties have been engaged, and continue to engage in activities to develop, test, market, manufacture and/or sell the technology that is the subject of a potential transaction or business relationship between the Parties and acknowledge and agree that nothing contained in this Agreement shall restrict or prohibit any party from continuing such development efforts whether or not with each other, and that such continuing development efforts will not be considered a breach of the terms and provisions of this Agreement.

  Neither this Agreement nor the disclosure or receipt of Confidential Information shall constitute or imply any promise or intention to make any purchase of property or services by any party or its affiliated companies or any commitment by any party or its affiliated companies with respect to the present or future marketing of any product or service.

• 6) Ownership of Confidential Information: All Confidential Information, and all material items delivered by the Disclosing Party to the Recipient, remains the property of the Disclosing Party and no license or other rights in the Confidential Information are granted to the Recipient by this Agreement or by the act of disclosure. No rights, obligations, representations or terms other than those expressly set forth herein are to be implied from this Agreement. In particular, without limitation, no license is hereby granted directly or indirectly to any Party or their respective employees: (a) under any patent, trademark, trade secrets or copyright; or (b) to use the other Party’s name, trade names, trademarks, service marks, logos or designs for any purpose; without the other Party’s prior written permission.
• 7) Return of materials and documents: Upon the written request of the Disclosing Party, the Recipient shall return to it (or, at the request of the Disclosing Party, erase or destroy) all materials that contain or embody any Confidential Information of the Disclosing Party, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof. Return or destruction of such material shall not relieve the Recipient of its obligations of confidentiality. Upon the request of the Disclosing Party, the Recipient will certify that it has complied with the provisions of this paragraph.
• 8) Non-Circumvention: In addition the Parties agree to not circumvent each other and work with business associates, clients, and other third parties introduced by each party in this case. The parties may introduce each other to companies that are interested in acquiring companies or being acquired. It is understood that the introducing party retains ownership of such a referral and that the other party cannot deal directly with such referred company without the written consent of the referring party. This non-circumvention provision shall expire at the end of two (2) years from the termination of this Agreement.
• 9) Non-Solicitation: For a period of two (2) years after the termination of this Agreement, all parties agree that they will not solicit for hire, or hire or advise or assist others with the opportunity to do the same, any employee of any other party, without the prior written consent of such other party.
• 10) Remedy: The Parties hereby acknowledge that unauthorized disclosure or use of Confidential Information or a breach of this Agreement could cause significant and irreparable harm, which may be difficult to ascertain, and that money damages would be inadequate compensation. Accordingly, the Parties agree that the Disclosing Party shall have the right to seek and obtain injunctive relief from breaches of this Agreement in addition to any other rights and remedies it may have from a court of competent jurisdiction.
• 11) Termination: This Agreement shall survive and remain in effect until expressly terminated in writing and signed by all Parties, or until two years from the date of execution, whichever occurs earlier.
• 12) General: This Agreement contains the entire agreement between the parties, and supersedes any prior written or oral agreements between them concerning the subject matter contained herein. The provisions of this Agreement may be waived, altered, amended or repealed, in whole or in part, only upon the written consent of all parties. The waiver of any party of a breach or violation of any provision of this Agreement shall not operate as or be construed to be a waiver of any subsequent breach hereof. This Agreement constitutes the product of negotiations of the parties hereto and any enforcement hereof will be interpreted in a neutral manner and not more strongly for against any party based upon the source of the draftsmanship of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions hereof shall continue to be fully effective. This Agreement shall be deemed to have been executed and delivered within the State of _________________, and the rights and obligations of the parties shall be construed and enforced in accordance with, and governed by, the laws of the State of ________________.