Mutual Non-Disclosure Agreement
Parties
This agreement is dated the date on which it is signed by the last of the parties.
This agreement is made between [Party 1] (the "Party 1") and [Party 2] (the "Party 2").
Key Terms
"Effective Date" means the date on which it is signed by the last of the parties.
"Purpose" means evaluating whether to enter into a business relationship with the other party.
"MNDA Term" means the period ending 1 year from the Effective Date.
"Confidentiality Period" means the period ending 2 years after the MNDA Term ends; provided that, for trade secrets, it continues for as long as the Confidential Information remains a trade secret under applicable law.
"Governing Law" means the laws of the State of Delaware.
"Jurisdiction" means the State of Delaware.
Introduction
This agreement allows each party (the "Disclosing Party") to disclose or make available information in connection with the Purpose which (a) the Disclosing Party identifies to the other party (the "Receiving Party") as “confidential”, “proprietary”, or the like or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure ("Confidential Information"). Each party’s Confidential Information also includes the existence and status of the parties’ discussions and the information in the Key Terms. Confidential Information includes technical or business information, product designs or roadmaps, requirements, pricing, security and compliance documentation, technology, inventions and know-how.
Use and Protection of Confidential Information
The Receiving Party must: (a) use Confidential Information solely for the Purpose; (b) not disclose Confidential Information to third parties without the Disclosing Party's prior written approval, except that the Receiving Party may disclose Confidential Information to its employees, agents, advisors, contractors and other representatives having a reasonable need to know for the Purpose, provided these representatives are bound by confidentiality obligations no less protective of the Disclosing Party than the applicable terms in this agreement and the Receiving Party remains responsible for their compliance with this agreement; and (c) protect Confidential Information using at least the same protections the Receiving Party uses for its own similar information but no less than a reasonable standard of care.
Reverse Engineering and AI Tools
The data, software programs, hardware, prototypes, samples, materials and other tangible objects included in each party's Confidential Information contain valuable confidential information. Without the Disclosing Party's prior written consent, the Receiving Party must not (a) modify, reverse engineer, decompile, create other works from or disassemble any of them, or (b) disclose, upload, transmit, export or otherwise make any of them available to any training, self-improving or machine-learning software, algorithm or hardware, or any other artificial-intelligence tool or aid. Except as necessary for the Purpose, the Receiving Party must not analyze, reverse engineer, create derivatives of or otherwise try to determine the structure, composition or components of any materials, compounds, technologies or assays the Disclosing Party provides.
Exceptions
The Receiving Party’s obligations in this agreement do not apply to information that it can demonstrate: (a) is or becomes publicly available through no fault of the Receiving Party; (b) it rightfully knew or possessed before receiving it from the Disclosing Party without confidentiality restrictions; (c) it rightfully obtained from a third party without confidentiality restrictions; or (d) it independently developed without using or referencing the Confidential Information.
Disclosures Required by Law
The Receiving Party may disclose Confidential Information to the extent required by law, regulation or regulatory authority, subpoena, court order or the rules of a securities exchange on which its securities are listed, provided that, to the extent legally permitted, it gives the Disclosing Party reasonable advance notice of the required disclosure and reasonably cooperates, at the Disclosing Party's expense, with the Disclosing Party's efforts to obtain confidential treatment for the Confidential Information. Nothing in this agreement prevents anyone from reporting a suspected breach of law to a regulator, law-enforcement agency or other competent authority, or from making any other disclosure that applicable law protects.
Term and Termination
This agreement commences on the Effective Date and expires at the end of the MNDA Term. Either party may terminate this agreement for any or no reason upon written notice to the other party. The Receiving Party’s obligations relating to Confidential Information survive for the Confidentiality Period despite any expiration or termination of this agreement.
Return or Destruction of Confidential Information
Upon expiration or termination of this agreement or upon the Disclosing Party’s earlier request, the Receiving Party will: (a) cease using Confidential Information; (b) promptly after the Disclosing Party’s written request, destroy all Confidential Information in the Receiving Party’s possession or control or return it to the Disclosing Party; and (c) if requested by the Disclosing Party, confirm its compliance with these obligations in writing. As an exception to paragraph (b), the Receiving Party may retain Confidential Information in accordance with its standard backup or record-retention policies or as required by law, but this agreement will continue to apply to the retained Confidential Information.
Proprietary Rights
The Disclosing Party retains all of its intellectual-property and other rights in its Confidential Information, and its disclosure to the Receiving Party grants no license under those rights.
Feedback
Any ideas, suggestions, guidance or other information that the Receiving Party gives about the Disclosing Party's Confidential Information, and any intellectual-property rights in them, are "Feedback". The Receiving Party grants the Disclosing Party a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license, with the right to grant and authorize sublicenses, to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit Feedback without restriction.
Disclaimer
ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”, WITH ALL FAULTS, AND WITHOUT WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Residuals
Neither party may use the other party's Confidential Information on the ground that it is retained in the unaided memory of any person. All use of Confidential Information remains subject to this agreement.
Non-Solicitation
For 12 months from the Effective Date, neither party may, without the other party's prior written consent, directly or indirectly solicit for employment or engagement any employee of the other party with whom it had dealings in connection with the Purpose. This does not restrict general recruitment advertising that is not targeted at the other party's employees, or hiring a person who responds to it or who approaches a party on their own initiative.
Securities Laws
Each party acknowledges that the other party's Confidential Information may include material non-public information, and that United States securities laws restrict any person who has material non-public information about an issuer from purchasing or selling that issuer's securities, or from communicating that information to any other person in circumstances in which it is reasonably foreseeable that the person is likely to purchase or sell those securities. Each party must comply with those laws.
Whistleblower Immunity Notice
Under 18 U.S.C. § 1833(b), an individual will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (b) in a complaint or other document filed in a lawsuit or other proceeding, if that filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the individual's attorney and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except under court order.
Governing Law and Jurisdiction
This agreement and all matters relating to it are governed by, and construed in accordance with, the Governing Law, without regard to its conflict-of-laws provisions. Any legal suit, action or proceeding relating to this agreement must be instituted in the federal or state courts located in the Jurisdiction, and each party irrevocably submits to the exclusive jurisdiction of those courts in any such suit, action or proceeding. This does not prevent either party from seeking equitable relief under the Equitable Relief clause in any court of competent jurisdiction.
Equitable Relief
A breach of this agreement may cause irreparable harm for which monetary damages are an insufficient remedy. Upon a breach of this agreement, the Disclosing Party is entitled to seek appropriate equitable relief, including an injunction, in addition to its other remedies.
General
Neither party has an obligation under this agreement to disclose Confidential Information to the other or to proceed with any proposed transaction. This agreement does not create a partnership, joint venture or agency between the parties. It does not prevent either party from discussing similar opportunities with others or developing products, services or information independently, provided it does not use or disclose the other party's Confidential Information in breach of this agreement.
Neither party may assign this agreement without the other party's prior written consent, except that either party may assign this agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any assignment in breach of this clause is void. This agreement binds and benefits each party's permitted successors and assigns.
Waivers must be signed by the waiving party's authorized representative and cannot be implied from conduct. If any provision of this agreement is held unenforceable, it will be limited to the minimum extent necessary so that the rest of this agreement remains in effect. This agreement, including the Key Terms, is the entire agreement of the parties with respect to its subject matter and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, whether written or oral, regarding that subject matter. This agreement may only be amended, modified, waived or supplemented by an agreement in writing signed by both parties.
Notices, requests and approvals under this agreement must be sent in writing to Party 1 at [Party 1 notice email or postal address] and Party 2 at [Party 2 notice email or postal address], and are deemed delivered on receipt.
This agreement may be executed in counterparts, including electronic copies and electronic signatures, each of which is deemed an original and which together form the same agreement.
Interpretation
Where a party is an individual, "it" and "its" include him or her and his or her, and a reference to that party's authorized representative includes the individual personally.
Headings are for convenience only, and “including” and similar terms are to be construed without limitation.