Confidential Information and Non-Disclosure Agreement
This
Agreement is made and entered into by and between _________________ ABC
(hereinafter referred to as ABC) having offices at ___________ and DEF
(hereinafter referred to as DEF) having offices at __________________
Subject
of ABC Information: Business and technical information including but not
limited to its ideas, products, proposed products, processes, services,
capabilities, and materials, or any information which quantifies, classifies,
or identifies any ideas, products, proposed products, processes, services,
capabilities and materials to be employed including
_________________________________________
Subject
of DEF Information: Business and technical information including but not
limited to its ideas, products, proposed products, processes, services,
capabilities, and materials, or any information which quantifies, classifies,
or identifies any ideas, products, proposed products, processes, services,
capabilities and materials to be employed including
________________________________________
Purpose(s)
of Disclosures: To exchange confidential information to enable the parties to
discuss possible future business collaborations relating to the aforementioned
business and technology.
The
parties anticipate that technical and business information, and/or media
samples, prototype parts or other tangible embodiments of information, may be
disclosed or delivered between the parties, for the above stated Purpose(s),
such information and tangible embodiments constituting confidential
information, being considered by ABC and DEF to be proprietary (and being
referred to hereinafter, collectively, as "Proprietary Material").
Any party furnishing Proprietary Material will be referred to as a "disclosing
party" and a party receiving Proprietary Material will be referred to as a
"receiving party." In order to provide for the protection of such
Proprietary Material from unauthorized use and disclosure, the parties hereby
agree that the disclosure of such Proprietary Material between them shall be
subject to the following terms and conditions:
1. Both parties agree
that all Proprietary Material which relates to the above-stated Subject(s) and
Purpose(s) and which is disclosed to the receiving party by the disclosing party,
whether orally, or in written or other tangible form, will be maintained by the
receiving party in confidence, provided, that: (a) disclosures in writing are
expressly marked with a confidential or proprietary legend; (b) oral
disclosures and tangible embodiments in a form other than written are
identified as confidential or proprietary at the time of disclosure or
delivery; and (c) oral disclosures are thereafter reduced to writing and marked
with a confidential or proprietary legend, which writing is thereafter
furnished to the receiving party within thirty (30) days after the oral
disclosure. The receiving party may, however, in furtherance of the aforesaid
Purpose(s), disclose such Proprietary Material to its professional advisors,
investment committee participants, and those of its employees and others under
its control, all of whom will be advised of this Agreement and agree to accept
the obligations there under. The receiving party further agrees not to reverse
engineer any tangible embodiments of Proprietary Material furnished by the
disclosing party, not to disclose any Proprietary Material to third parties and
limit circulation of the Proprietary Material to such employees and others
under its control having a direct "need to know" in connection with
the above mentioned Purpose.
2. The receiving party
additionally agrees to take reasonable care to safeguard the confidential
nature of the foregoing Proprietary Material, and such reasonable care shall
not be less than the degree of care used to prevent disclosure of its own
proprietary material. However, the receiving party will not be liable for
disclosure and use of such Proprietary Material: if the Proprietary Material is
in, or becomes part of, the public domain other than through a breach of this
Agreement by the receiving party; if the Proprietary Material is disclosed to
the receiving party by a third party who is not known by the receiving party to
be subject to any confidentiality obligation; if the Proprietary Material is
disclosed by the receiving party with the disclosing party's prior written
approval; or if disclosure of the Proprietary Material is required by any
judicial order or decree or by any governmental law or regulation. Further,
with respect to such Proprietary Material provided to the receiving party by
the disclosing party, or rule of any stock exchange the receiving party shall
not be liable for disclosure and use thereof if such Proprietary Material was
of record in the files of the receiving party at the time of its disclosure to
the receiving party by the disclosing party or if such Proprietary Material is
developed by the receiving party completely independently of the disclosing
party's Proprietary Material. Prior to disclosure to any third party of any
Proprietary Material to which the receiving party determines the obligations of
confidentiality, non-use and non-disclosure do not apply pursuant to this
Agreement, the receiving party shall provide thirty (30) days' prior written
notice to disclosing party of the intent to disclose such Proprietary Material,
stating the grounds upon which the exception is claimed and providing
documentation in support thereof. The receiving party shall limit the scope of
disclosure to only the portion of the Proprietary Material not protected.
3. Proprietary Material
identified and disclosed as provided in this Agreement shall be held in
confidence for a period of ______years from the date of disclosure. During such
period, such Proprietary Material shall be used only for the Purpose(s) stated
above. Neither party acquires any intellectual property rights under this
Agreement, except the limited rights to carry out the Purpose(s) above stated.
4. Each party
understands that the other is developing and acquiring technology for its own
products, and that existing or planned technology independently developed or
acquired by that party may contain ideas and concepts similar or identical to
those contained in the disclosing party's proprietary information. The
disclosing party agrees that entering this Agreement shall not preclude the
receiving party from developing or acquiring technology similar to the
disclosing party's, without obligation to the disclosing party, provided the
receiving party does not use the disclosing party's proprietary information to
develop such technology.
5. All Proprietary
Material received and identified in accordance with this Agreement shall remain
the property of the disclosing party and shall be returned or destroyed upon
request except that the receiving party may keep one copy of such proprietary
material for its legal files which shall remain subject hereto. Nothing
contained herein shall be construed as a right or license, express or implied,
under any patent or copyright, or application therefore, of either party by or
to the other party.
6. Each disclosing party
warrants that it has the right to make disclosures under this Agreement. NO
OTHER WARRANTIES ARE MADE BY EITHER PARTY. ALL PROPRIETARY MATERIAL IS PROVIDED
"AS IS".
7. The receiving party
agrees that no technical data furnished to it by the disclosing party shall be
exported from the ________without first complying with all requirements of the
concerned rules and regulations, including the requirement for obtaining any
export license, if applicable. The receiving party shall first obtain the
written consent of the disclosing party prior to submitting any request for
authority to export any such technical data.
8. This Agreement
a. will be effective as
of the date of the signature by the last party to execute this Agreement, and may
be terminated at any time upon written notice by either party;
b. shall automatically
terminate _______years from its effective date unless terminated sooner
pursuant to provision (a) above;
c. does not obligate
either party to deliver a purchase order for the performance of any service or
for the supply of any article whatsoever;
d. does not obligate
either party to perform any service or to furnish any proposal or comments;
e. (e)does not obligate
either party to disclose Proprietary Material to the other; and
f. will be binding upon
the parties hereto and their successors, assignees, or personal representatives
as the case may be. Any termination of this agreement shall not relieve the
receiving party of any obligations herein incurred prior to the date of such termination
or to be performed subsequent to the date of such termination.
9. The terms and
conditions herein constitute the entire agreement and understanding of the
parties and shall supersede all communications, negotiations, arrangements and
agreements, either oral or written, with respect to the subject matter hereof.
No amendments to or modifications of this Agreement shall be effective unless
reduced to writing and executed by the parties hereto. The failure of either
party to enforce any term hereof shall not be deemed a waiver of any rights
contained herein.
10. This Agreement shall
apply to any Proprietary Material that may have been provided to either party
prior to the effective date hereof.
11. No rights or
obligations other than those expressed and recited herein are to be implied
from this Agreement. No other existing Agreement between the parties, if any,
are modified or terminated by this Agreement. No warranty or representation is
made by either party hereto that any information transmitted by it hereunder is
patentable or copyrightable, or that any such information involves concepts or
embodiments that are free of infringement of other rights. Neither party hereto
shall be obligated to prosecute any such action or bring any suit against any
person not a party hereto for infringement. Neither party shall indemnify the
other party hereto for any liability resulting from infringement of patent,
copyright or trademark of a third party caused by the use of any Proprietary
Material transferred pursuant to the Agreement. Neither party hereto confers
the right to the other to use in advertising, publicity, or otherwise any
trademark or trade name of the other party, nor confers any authorization to
the other party to act as an agent on its behalf for any purpose.
12. This Agreement shall
be governed and interpreted in accordance with the laws of the ___________,
without giving effect to its internal principles of conflict of law.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate.
ABC
DEF
By:_______________________
By:_____________________
(Authorized
Signature) (Authorized Signature)
Name:______________________
Name:___________________
Title:__________________
Title:___________________
Date:
