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Unformatted text preview: Non-Disclosure Agreement
Agreement made [insert date], between:
[insert company A name] including its affiliates and subsidiaries, with principal
offices at [insert address] and [insert company B name] with principal offices at
In connection with a possible business relationship between the parties, each party
intends to disclose certain confidential information to the other party. The purpose
of such disclosure is to enable each party (i) to evaluate the proposed business
relationship and (ii) to conduct any ensuing business arrangement that is actually
conducted by the parties without the benefit of a further agreement governing the
treatment of confidential information.
In consideration of each party making such confidential information available to the
other party, the parties hereby agree as follows:
o "Owner" shall mean the party disclosing Proprietary Information (as
hereinafter defined) or from whom Proprietary Information was obtained.
o "Recipient" shall mean the party receiving the Proprietary Information.
o "Proprietary Information" shall mean any and all technical, trade secret or
business information including, without limitation, financial information,
business or marketing strategies or plans, product dev elopment, or customer
information of the Owner, which is disclosed to the Recipient or is otherwise
obtained by the Recipient from the Owner, its affiliates, agents or
representatives during the term of this agreement.
2. Duty not to Disclose.
The Recipient acknowledges and understands that the Proprietary Information is
confidential and proprietary, and is of great value and importance to the success of
the Owner's business. The Recipient agrees to use its best efforts (the same being
not less than that employed to protect its own proprietary information of a similar
type) to safeguard the Proprietary Information and to prevent the unauthorized,
negligent or inadvertent disclosure thereof. The Recipient shall not, without the prior
written approval of an officer of the Owner, directly or indirectly, disclose the
Proprietary Information to any person or business entity except for a limited number
of employees, attorneys, accountants and other advisors of the Recipient and its
affiliates on a need-to-know basis. The Recipient shall promptly notify the Owner in
writing of any unauthorized, negligent or inadvertent disclosure of Proprietary
Information of the Owner. The Recipient shall be liable under this agreement to the
Owner for any disclosure in violation of this agreement by it or its affiliates'
employees, attorneys, accountants or other advisors or agents. 3. Use Restriction.
With respect to Proprietary Information that is designated on Schedule A hereto as
“Special Proprietary Information”, if any, the Recipient shall only use the Special
Proprietary Information for the limited purpose of evaluating the possibility of
entering into a business relationship with the Owner as is presently being discussed
between the parties and shall not use th e Special Proprietary Information for any
other purpose. The Recipient shall promptly notify the Owner in writing of any
unauthorized, negligent or inadvertent use of Special Proprietary Information of the
Owner. The Recipient shall be liable under this agreement to the Owner for any use
in violation of this agreement by it or its affiliates' employees, attorneys, accountants
or other advisors or agents.
4. Duty To Return.
The Recipient shall, upon completion or other termination of discussions with re spect
to the Proprietary Information, or upon termination of this agreement, or upon
demand by the Owner, whichever is earlier, promptly: (a) return to the Owner any
and all Proprietary Information in tangible form together with all copies or
reproductions thereof; and (b) destroy any notes, memoranda or other documents
concerning the Proprietary Information and provide a certificate from an officer of
Recipient certifying to Owner that such items have been destroyed.
The Recipient acknowledges and understands that the use or disclosure of the
Proprietary Information in any manner inconsistent with this agreement will cause
the Owner irreparable damage. The Owner shall have the right to: (a) equitable and
injunctive relief to prevent such unauthorized, negligent or inadvertent use or
disclosure; and (b) recover the amount of all such damage (including attorneys' fees
and expenses) to the Owner in connection with such use or disclosure. In the event
that any court of competent jurisdiction determines that any provision of this
agreement is too broad to enforce as written, such court is authorized and directed
to construe, modify or reform such provision to the extent reasonable necessary to
make such provision enforceable. Nothing in this agr eement shall be construed to
prohibit any party from pursuing any other available remedies for breach or
threatened breach of this agreement, including the recovery of damages. No failure
or delay by any party in exercising any right, power or privilege under this
agreement shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude the exercise of any other right, power or privilege hereunder.
Recipient shall not have any obligations under this agreement with respect to any
information that is: (a) already known to Recipient or its affiliates at the time of the
disclosure; (b) publicly known at the time of the disclosure or becomes publicly
known through no wrongful act or failure of Recipient; (c) subsequently disclosed to
Recipient or its affiliates on a non -confidential basis by a third party not having a
confidential relationship with Owner which rightfully acquired such information; (d) communicated to a third party by Recipient with the express writt en consent of
Owner; (e) independently developed by the Recipient or its affiliates; or (f) legally
compelled to be disclosed pursuant to a subpoena, summons, order or other judicial
or governmental process, provided Recipient provides prompt notice of any such
subpoena, order, etc. to Owner so that Owner will have the opportunity to obtain a
protective order. 7. Termination.
This Agreement shall have a term of two years unless extended by mutual
agreement or terminated pursuant to the succeeding sent ence. Either party may
terminate this agreement by giving the other party 90 -business days written notice.
The rights and obligations of the parties hereunder with respect to any Proprietary
Information disclosed or obtained prior to termination shall su rvive any termination
of this agreement or any return of Proprietary Information under Section 4 for a
period of 5 years.
The Owner is not making any representation or warranty, expressed or implied, as to
the accuracy or completeness of an y Proprietary Information nor shall the Owner
have any liability to the Recipient or to any other person resulting from the
Recipient's use of the Proprietary Information. Neither party shall be bound with
regard to any transaction being discussed by the parties unless and until both parties
execute a definite written agreement. The provisions of this agreement shall be
binding upon each party's successors and assigns and shall be governed by and
construed in accordance with the laws of Canada.
Consummated and executed on [insert date]. Company A: Company B: Name: Name: Title: Title: Signature: Signature: ...
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This note was uploaded on 01/08/2011 for the course RTV 3208 taught by Professor Hendel during the Spring '10 term at University of Florida.
- Spring '10