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MUTUAL CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is made this ____ day of ________, 200__ between Company A, a (your state) corporation with offices at (address) and Company B a (state) corporation with offices at _____________________ .
Company A and Company B have entered into, or are considering, a possible business relationship relating to __________________ that may involve the disclosure of proprietary and confidential information. Each party is agreeable to disclosing its respective information to the other party only upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which hereby are expressly acknowledged, the parties intending to be bound hereby agree as follows:
1. "Confidential Information" includes any and all non-public information disclosed by one party to the other pursuant to this Agreement in a writing marked with an appropriate legend such as "Confidential" or "Proprietary" or if initially communicated either orally or visually, reduced to a writing thus marked within thirty (30) days thereof. Failure to thus mark the Confidential Information shall not be deemed to be a waiver, provided that the Confidential Information either by the nature of the information or in the form and manner transmitted is readily recognizable by a reasonable person to be confidential or proprietary. It is understood that the obligations imposed upon the parties by this Agreement shall not apply to information that at the time of disclosure or thereafter (i) was generally available to and known by the public, other than as a result of a disclosure by the receiving party or its representatives; (ii) was generally available to the receiving party on a non-confidential basis from a source other than the disclosing party or its representatives, provided that such source was not known to the receiving party to be bound by a confidentiality agreement with the disclosing party; (iii) the information was already known to the receiving party, as evidenced by its written records; or (iv) the information is, as evidenced by written records, independently developed by or on behalf of the receiving party by individuals who did not directly or indirectly receive relevant Confidential Information of the disclosing party.
2. For a period of five (5) years from the date first written above, each party shall use a standard of care that it applies to its own information of a like kind, but not less than a reasonable standard of care to protect the other party's Confidential Information. Except as otherwise directed by the disclosing party, each party shall not use, except for the benefit of the disclosing party, or disclose the same to others without the prior written consent of the disclosing party.
3. Each party agrees that it will make available the other party's Confidential Information only on a "need to know" basis and that all persons to whom such Confidential Information is made available will be made aware of the strictly confidential nature of such Confidential Information. Without the prior written consent of the disclosing party, neither the receiving party, nor its representatives, will disclose to any third party, except as may be required by law (and then only upon prior notice to the disclosing party), either the fact that a commercial relationship exists, or is under consideration, or any of the terms thereof. If either party is compelled by judicial or governmental request or order to disclose any Confidential Information or that discussions or negotiations between the parties are taking place, it is agreed that such party will provide the other party with prompt written notice of such request, so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that either party waives compliance with the provisions of this Agreement, each party agrees that it will furnish only that portion of Confidential Information that is legally required and that it will use its best efforts to obtain reliable assurance that a confidential treatment will be accorded to the Confidential Information that is being disclosed.
4. Each party agrees that it will not use in advertising, publicity or otherwise any trade name or trademark or any product, contraction, abbreviation or simulation thereof that is owned, to such party's knowledge, by the other party or any subsidiary or affiliate of such other party.
5. Upon written request, each party shall promptly return all Confidential Information to the disclosing party, however, each party shall be entitled to retain one (1) copy of the Confidential Information in the office of its legal counsel.
6. No provisions of this Agreement shall be waived or amended except by written consent of both parties. No failure or delay by either party in exercising any right, power or privilege under this Agreement shall operate as a waiver. Each party shall be entitled to seek equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this Agreement.
7. This Agreement constitutes the entire agreement and understanding between the parties as to Confidential Information and supersedes all prior or contemporaneous communications, negotiations, representations or agreements between the parties with respect to the subject matter hereof. No representations have been made by either of the parties except as are specifically set forth herein. No rights or obligations, other than those expressly recited herein, are to be inferred from this Agreement.
8. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. All terms and conditions of this Agreement will be deemed enforceable to the fullest extent permissible under applicable law, and when necessary, the court is requested to amend any and all terms or conditions to give them effect.
9. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and permitted assigns, as the case may be. This Agreement shall survive and shall not be affected by any termination of any commercial relationship between the parties.
10. Each party agrees that the Confidential Information is and shall remain the sole property of the disclosing party. Nothing in this Agreement shall be construed to require the parties to enter into a business relationship or to grant either party any right, interest or license in or under any patent, trademark, copyright, trade secret or other proprietary right or material owned by the other party, whether or not it is part of the Confidential Information.
11. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument.
12. This Agreement shall be governed by and construed in accordance with the laws of the State of _____________________.
13. All notices and other communications to be given under this Agreement shall be in writing and shall be provided either by; personal delivery (including courier), first class mail; or electronic transmission, and shall be deemed to have been duly given when sent and a notice of successful transmission is received by the sender. Notice to either party shall be sent to its address as set forth above, or to such other address as a party hereto shall have given notice pursuant to this Section 13.
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate as of the date written above.
Company A
By:____________________________
Name:____________________________
Title:____________________________Company B
By:____________________________
Name:____________________________
Title:____________________________