Mutual Confidentiality Agreement
THIS AGREEMENT, is entered into this _____
day of ________, 20___, by and between ________________________ [defined
name], a [state of organization and business structure], and
__________________________ [defined name] a [state of organization and
business structure], (each a “Party” and collectively the “Parties”).
WHEREAS, the Parties will be having discussions concerning their
respective business operations and future business opportunities (the
“Authorized Purpose”), which discussions will require the disclosure of
information that the Parties deem proprietary and confidential;
WHEREAS, the Parties wish to protect their respective
confidential information against any unauthorized use and any unauthorized or
uncontrolled disclosure.
NOW THEREFORE, in consideration of the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
A.
As
used throughout this Agreement, the term “Confidential Information” means
information not generally known to third parties and which is proprietary to
the Party disclosing such information (the “Disclosing Party”) including
information relating to product strategies, financing strategies,
organizational strategies, site location strategies, permitting strategies,
design/build and other contract discussions and strategies, technical know-how,
trade secret information, financial information, plant specifications,
prospective investor lists and strategies, pricing policies, operational
methods, marketing information including without limitation strategy, sales,
finance and business systems and techniques, business plans, and other business
affairs of the Disclosing Party. All information of the
Disclosing
Party that is disclosed to the other Party (the “Receiving Party”) or to which
the other Party obtains access, whether originated by the Receiving Party or by
the Disclosing Party or others, shall be presumed to be Confidential
Information.
B.
It
is understood that unauthorized disclosure or use, whether intentional or
unintentional, of any of the Confidential Information would be detrimental to
the Disclosing Party. Accordingly, each Party agrees:
i.
Not
to disclose to any third party the object and scope of the discussions between
the Parties, except as required by law or as may be necessary to enforce the
terms hereof.
ii.
Not
to use any of the Confidential Information for any purpose other than for or in
connection with the Authorized Purpose.
iii.
To
maintain all of the Confidential Information in confidence and not to disclose
any portion of the Confidential Information to any person or entity not
authorized hereunder without the prior written consent of the Disclosing
Party
iv. That any dissemination of
Confidential Information shall be only in connection with the Authorized
Purpose, and shall be only to the employees, agents or affiliates of Receiving
Party who have a need to know said Confidential Information in order for the Receiving
Party to carry out proper purposes and responsibilities related to the
Receiving Party’s discussions with the Disclosing Party and the Authorized
Purpose and who have been advised of the confidential nature of such
information. Further, the
Receiving Party
shall cause such employees, agents and affiliates who have access to the
Confidential Information to comply with the terms and provisions of this
Agreement in the same manner as each party is bound hereby, with the Receiving
Party remaining responsible for the actions and disclosures of such
representatives.
v. That, upon termination of
the discussions between the Parties or upon the
Disclosing
Party’s request, all records, any compositions, articles, documents and other
items which contain, disclose and/or embody any
Confidential
Information (including, without limitation, all copies, reproductions,
summaries and notes of the contents thereof), regardless of the person causing
the same to be in such form, shall be returned to the Disclosing Party or
destroyed by the Receiving Party, and the Receiving Party will certify that the
provisions of this paragraph have been complied with.
C.
The
obligations pursuant to Section B above shall not apply to information which:
1.
Is
or becomes a part of the public domain through no act or omission of the
Receiving Party;
2.
Can
be shown to be already possessed by the Receiving Party as of the date of disclosure;
3.
Shall
be made available to the Receiving Party on a non-confidential basis by a third
party having a right to do so;
4.
Is
disclosed by order of a court of competent jurisdiction; or
5.
The
Disclosing Party authorizes, in writing, for release.
D.
If
the Receiving Party or its representatives receives a request to disclose all
or any part of the Confidential Information under the terms of a valid and
effective subpoena or order issued by a court of competent jurisdiction or by a
governmental body, the Receiving Party agrees to:
a)
Immediately
notify the Disclosing Party of the existence, terms and circumstances
surrounding such a request, so that is may seek an appropriate protective order
and/or waive the Receiving Party’s compliance with the provisions of this
Agreement; and
b)
If
disclosure of such Confidential Information is required in the opinion of the
Receiving Party’s counsel, to the extent possible cooperate with the
Disclosing
Party in obtaining reliable assurances that confidential treatment will be
accorded to the disclosed Confidential Information.
E.
The
Parties hereto acknowledge that each Party’s Confidential Information is the
property of the Disclosing Party and the disclosure of the Confidential
Information to
the Receiving Party does not convey any right, title or license in the
Confidential
Information to the Receiving Party. The Receiving Party shall not appropriate
the Confidential Information to its own use or to the use of any third party.
F.
It
is further understood and agreed that no failure or delay by the Disclosing
Party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any right, power or
privilege hereunder.
G.
The
termination of the discussions or relationship between the Parties shall not
relieve either Party or its employees, agents or affiliates of the obligations
of nonuse or nondisclosure hereunder or the obligation to return or destroy
certain materials.
H.
The
Parties agree that money damages would not be sufficient remedy for any breach
of this Agreement, and the nonbreaching Party shall be entitled to enforce this
Agreement by injunctive and other available relief, including without
limitation specific performance.
I.
This
Agreement shall be governed by and construed and interpreted in accordance with
the substantive laws of the State of [governing law]. Whenever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision hereof shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement. All obligations and rights of the Parties expressed herein
shall be in addition to, and not in limitation of, those provided by applicable
law. This Agreement may be modified or waived only by a separate writing by the
Parties expressly so modifying or waiving such. This Agreement may be executed
in any number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
References to
the Parties shall be deemed to include each of their affiliates, if any. Any
disputes arising out of this Agreement shall be venued in federal or state
district court in the State of [governing law], and each Party
hereby consents to the jurisdiction of such court. This Agreement shall be
binding upon the Parties hereto and their successors and assigns.
IN WITNESS WHEREOF, the Parties acknowledge their
agreement to the foregoing as of the date first set forth above by execution of
the Agreement by their respective authorized representatives.
Company Name /
Signatures
0 Comments
Thank you for your response. It will help us to improve in the future.