Confidential Information and Non-Disclosure Agreement[CD1]
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:
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