Sample non-disclosure agreement (NDA)

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Sample non-disclosure agreement:

This Mutual Non-Disclosure Agreement (“Agreement”) is made and entered into between <Company name>, Inc., for itself and its subsidiaries and affiliates (<Company name”), and “Participant” identified below, individually referred to as a “Party” and collectively referred to as the “Parties”. The Parties wish to exchange Confidential Information (as defined below in Section 2) for the following purpose (s): to explore a possible business relationship between the parties (the “Purpose”). The Parties have entered into this agreement to protect the confidentiality of information in accordance with the following terms:

1. The Effective Date of this Agreement is <Date Agreement>
2. In connection with the purpose, a Party may disclose specific information it considers confidential and/or proprietary (“Confidential Information”) to the other party including, but not limited to, tangible, intangible, visual, electronic, present, or future information such as (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; (d) business information, including operations, planning, marketing interests, and products; (e) the terms of any agreement entered into between the Parties and the discussions, negotiations and proposals related thereto; and (f) information acquired during any facilities tours.
3. The party receiving Confidential Information (a “Recipient”) will have a duty to protect Confidential Information disclosed to it by the other party (“Discloser”): (a) if it is clearly and conspicuously marked as “confidential” or with a similar designation; (b) if it is identified by the Discloser as confidential and/or proprietary before, during, or promptly after presentation or communication; or (c) if it is disclosed in a manner in which the Discloser reasonably communicated, or the Recipient should reasonably have understood under the circumstances, including without limitation those described in Section 2 above, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used.
4. A Recipient will use the Confidential Information only for the purpose described above. A Recipient will use the same degree of care, but not less than a reasonable degree of care, as the Recipient uses with respect to its own information of a similar nature to protect the Confidential Information and to prevent: (a) any use of Confidential Information in violation of this agreement; and/or (b) communication of Confidential Information to any unauthorized third parties. Confidential information may only be disseminated to employees, directors, agents, or third-party contractors of Recipient with a need to know and who have first signed an agreement with either of the Parties containing confidentiality provisions substantially similar to those set forth herein.
5. Each party agrees that it shall not do the following, except with the advanced review and written approval of the other party: (a) issue or release any articles, advertising, publicity, or other matter relating to this agreement (including the fact that a meeting or discussion has taken place between the Parties) or mentioning or implying the name of the other party; or (b) make copies of documents containing Confidential Information.
6. This agreement imposes no obligation upon a Recipient with respect to Confidential Information that: (a) the Recipient can demonstrate was known to the Recipient before receipt from the Discloser; (b) is or becomes publicly available through no fault of the Recipient; (c) is rightfully received by the Recipient from a third party without a duty of confidentiality; (d) the Recipient can demonstrate is independently developed by the Recipient without a breach of this agreement; (e) is disclosed by the Recipient with the Discloser’s prior written approval; or (f) is required to be disclosed by operation of law, court order or other governmental demand (“Process”); provided that, where permitted and reasonably able, (i) the Recipient shall immediately notify the Discloser of such Process; and (ii) the Recipient shall not produce or disclose Confidential Information in response to the Process unless the Discloser has: (a) requested protection from the legal or governmental authority requiring the Process and such request has been denied, (b) consented in writing to the production or disclosure of the Confidential Information in response to the Process, or (c) taken no action to protect its interest in the Confidential Information within 14 business days after receipt of notice from the Recipient of its obligation to produce or disclose Confidential Information in response to the Process.
7. EACH DISCLOSER WARRANTS THAT IT HAS THE RIGHT TO DISCLOSE ITS CONFIDENTIAL INFORMATION. NO OTHER WARRANTIES ARE MADE. ALL CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER IS PROVIDED “AS IS”.
8. This agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written notice. Notwithstanding the foregoing, this Agreement shall survive with respect to Confidential Information that is disclosed before the effective date of termination.
9. Unless the Parties otherwise agree in writing, a Recipient’s duty to protect Confidential Information expires five (5) years from the date of disclosure. A Recipient, upon Discloser’s written request, will promptly return all Confidential Information received from the Discloser, together with all copies, or certify in writing that all such Confidential Information and copies thereof have been destroyed. Regardless of whether the Confidential Information is returned or destroyed, the Recipient may retain an archival copy of the Discloser’s Confidential Information in possession of outside counsel of its choosing for use solely in the event a dispute arises hereunder and only in connection with such dispute.
10. This agreement imposes no obligation on a Party to exchange Confidential Information, proceed with any business opportunity, or purchase, sell, license, transfer or otherwise make use of any technology, services, or products.
11. No Party acquires any intellectual property rights under this agreement (including, but not limited to, patent, copyright, and trademark rights) except the limited rights necessary to carry out the purpose as set forth in this agreement and each party agrees not to modify, decompile or reverse engineer any equipment, component, software, or other tangible information of the other party without Disclosers express consent. Notwithstanding anything here to the contrary, Participant recognizes that <Company name> may in the future develop or purchase products or services related to or similar to the subject matter of Confidential Information disclosed under this agreement so long as Company name does not use any of Participant’s Confidential Information.
12. Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, the injured party is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies available to it.
13. This agreement does not create any agency or partnership relationship. This agreement will not be assignable or transferable by the Participant without the prior written consent of the Company name.
14. This agreement may be executed in two or more identical counterparts, each of which shall be deemed an original. All of which taken together shall be deemed to constitute the agreement when a duly authorized representative of each party has signed the counterpart.
15. This agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements and all contemporaneous oral communications. All additions or modifications to this agreement must be made in writing and must be signed by the Parties. Any failure to enforce a provision of this agreement shall not constitute a waiver thereof or of any other provision.
16. This agreement shall be governed by the laws of the State of New Jersey, without reference to conflict of laws principles.