Here is a sample Non-Disclosure Agreement (NDA). Please edit the terms in [brackets].
THIS INFORMATION EXCHANGE AGREEMENT (herein the “Agreement”) is between [Company A] and Company. The terms “Recipient” and “Discloser” refer to either [Company A] or Company, as the case may be.
R E C I T A L S
1. The parties acknowledge that it may be necessary for each of them, as Discloser, to provide to the other, as Recipient, certain information, including trade secret information, considered to be confidential, valuable and proprietary by Discloser, for the purpose of evaluating a potential business relationship in connection with the promotion and sale by Company of wireless voice or data services and/or products provided by [Company A] and, if desired by the parties, execution of a certain documents necessary to establish a distribution relationship between the parties (the “Project”).
2. Such information may include, but is not limited to, technical, financial, marketing, staffing and business plans and information, strategic information, proposals, requests for proposals, specifications, drawings, prices, costs, customer information, procedures, proposed products, processes, business systems, software programs, techniques, services and like information of, or provided by, Discloser, its Affiliates or any of their third party suppliers or agents, and also includes the fact that such information has been provided by the Discloser, the fact that the parties are discussing the Project and any terms, conditions or other facts with respect to the Project (collectively Discloser’s “Information”). Information provided by one party to the other before execution of this Agreement and in connection with the Project is also subject to the terms of this Agreement. “Affiliates” means any company owned in whole or in part, now or in the future, directly or indirectly through a subsidiary, by a party hereto or under common ownership, in whole or in part, with a party, unless such Affiliate is in competition with the Discloser.
IN CONSIDERATION of the mutual promises and obligations contained herein and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:
1. Recipient will protect Information provided to Recipient by or on behalf of Discloser from any use, distribution or disclosure except as permitted herein. Recipient will use the same standard of care to protect Information as Recipient uses to protect its own similar confidential and proprietary information, but not less than a reasonable standard of care.
2. Recipient agrees to use Information solely in connection with the Project and for no other purpose. Recipient will restrict the possession, knowledge, development and use of confidential Information to its employees, agents, subcontractors and entities controlled by or controlling it (collectively, "Personnel") who: a) have a substantive need to know such Information in connection with the Project; (b) have been advised of the confidential and proprietary nature of such Information; and (c) have personally agreed with Recipient in writing to protect from unauthorized disclosure all confidential and proprietary information, of whatever source, to which they have access in the course of their employment or engagement.
3. All Information will be provided to Recipient in written or other tangible or electronic form and must be marked with a confidential and proprietary notice. Information orally or visually provided to Recipient must be designated by Discloser as confidential and proprietary at the time of such disclosure and must be reduced to writing marked with a confidential and proprietary notice and provided to Recipient within thirty calendar days after such disclosure. Notwithstanding the failure of either party to mark or designate Information as confidential or to reduce it to writing as described above, Information that by its nature or under the particular circumstances of disclosure should be understood to be confidential or proprietary by a party exercising reasonable judgment will be protected as set out in this Agreement.
4. Discloser’s Information does not include:
1. any information publicly disclosed by Discloser;
2. any information Discloser in writing authorizes Recipient to disclose without restriction;
3. any information Recipient already lawfully knows at the time it is disclosed by Discloser, without an obligation to keep it confidential;
4. any information Recipient lawfully obtains from any source other than Discloser, provided that such source lawfully disclosed such information; or
5. any information Recipient independently develops without use of or reference to Discloser’s Information.
5. If Recipient is required to provide Information to any court or government agency pursuant to written court order, subpoena, regulation or process of law, Recipient must first provide Discloser with prompt written notice of such requirement and cooperate with Discloser to appropriately protect against or limit the scope of such disclosure. To the fullest extent permitted by law, Recipient will continue to protect as confidential and proprietary all Information disclosed in response to a written court order, subpoena, regulation or process of law.
6. Recipient may make tangible or electronic copies, notes, summaries or extracts of Information only as necessary for use as authorized herein. All tangible or electronic copies, notes, summaries or extracts must be marked with the same confidential and proprietary notice as appears on the original.
7. Information remains at all times the property of Discloser. Upon Discloser’s request, all or any requested portion of the Information (including, but not limited to, tangible and electronic copies, notes, summaries or extracts of any Information) will be promptly returned to Discloser or destroyed, and Recipient will provide Discloser with written certification stating that such Information has been returned or destroyed.
8. The Discloser acknowledges that the Recipient may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Information. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Recipient will not develop or have developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Information, provided that the Recipient does not violate any of its obligations under this Agreement in connection with such development.
9. Recipient will not identify Discloser, its Affiliates or any other owner of Information in any advertising, sales material, press release, public disclosure or publicity without prior written authorization by Discloser. No license under any trademark, patent, copyright, trade secret or other intellectual property right is either granted or implied by disclosure of Information to Recipient.
10. The term of this Agreement and the parties’ obligations hereunder commence on the Effective Date and extend with regard to all Information until two years after the date of final disclosure of Information hereunder. Thereafter, the parties’ obligations hereunder survive and continue in effect with respect to any Information that is a trade secret under applicable law.
11. This Agreement is not a commitment by either party to enter into any transaction or business relationship, nor is it an inducement for either party to spend funds or resources. No such agreement will be binding unless and until stated in a writing signed by both parties.
12. Recipient acknowledges and agrees that any breach or threatened breach of this Agreement is likely to cause Discloser and its Affiliates irreparable harm for which money damages may not be an appropriate or sufficient remedy. Recipient therefore agrees that Discloser or its Affiliates are entitled to receive injunctive or other equitable relief to remedy or prevent any breach or threatened breach of this Agreement. Such remedy is not the exclusive remedy for any breach or threatened breach of this Agreement, but is in addition to all other rights and remedies available at law or in equity.
13. No forbearance, failure or delay in exercising any right, power or privilege is waiver thereof, nor does any single or partial exercise thereof preclude any other or future exercise thereof, or the exercise of any other right, power or privilege.
14. If and to the extent any provision of this Agreement is held invalid or unenforceable at law, such provision will be deemed stricken from the Agreement and the remainder of the Agreement will continue in effect and be valid and enforceable to the fullest extent permitted by law.
15. This Agreement is binding upon and inures to the benefit of the parties and their heirs, executors, legal and personal representatives, successors and assigns, as the case may be.
16. This Agreement is deemed executed in the State of [State], U.S.A., and is to be governed and construed by [State] law, without regard to its choice of law provisions. The parties agree that jurisdiction and venue for any action to enforce this Agreement are properly in the applicable federal or state court.
17. This Agreement is the entire agreement between the parties hereunder and may not be modified or amended except by a written instrument signed by both parties. Each party has read this Agreement, understands it and agrees to be bound by its terms and conditions. There are no understandings or representations with respect to the subject matter hereof, express or implied, that are not stated herein. This Agreement may be executed in counterparts, and signatures exchanged by facsimile or other electronic means are effective for all purposes hereunder to the same extent as original signatures.
BY SELECTING ‘I APPROVE’ BELOW, THE DEALER ACKNOWLEDGES THAT DEALER HAS READ AND UNDERSTANDS EACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREES TO BE BOUND BY THEM.
Dealer’s Legal Signatory Name as listed in application
Please type your name into this box exactly as is shown above:
I Approve:
NDA Date:
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