THIS MUTUAL NON-DISCLOSURE AGREEMENT

is effective as of [EFFECTIVE DATE]

and is between [PARTY ONE NAME], with its principal place of [PARTY ONE BUSINESS OR RESIDENCE] at [PARTY ONE ADDRESS] ("[PARTY ONE ABBR]")

and [PARTY TWO NAME], with its principal place of [PARTY TWO BUSINESS OR RESIDENCE] at [PARTY TWO ADDRESS] ("[PARTY TWO ABBR]")

(together, the "Parties" and each, a "Party").

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SOURCE: 

www.hbs.edu/newventurecompetition/Documents/Nondisclosure%20Agreement.docx 

NDA Contract Content

Please Read Carefully Before Proceeding

USER DISCLAIMER (Please DELETE): This agreement may not be suitable for your circumstances and we recommend you seek legal advice before using it. Better Proposals does not take any responsibility for any events that arise as a result of your use of this agreement.

Purpose of Disclosure:

This NDA is a mutual agreement signed between two parties to share confidential information and to keep trade secrets private.

1. Definitions

When used in this Agreement:

1.1. "Affiliates" means any legal entity which a Party owns, which owns a Party, or which is under common ownership with such Party.

1.2. "Authorized Representatives" means either Party's Affiliates, directors, officers, managers, partners, employees, contractors, agents, accountants, legal counsels, advisors, and associates.

2. Purpose

The Parties have entered into this Agreement to exchange certain Confidential Information in connection with [PURPOSE OF DISCLOSURE] (the "Purpose").

3. Exchange of Information

The Parties agree to exchange Confidential Information under the terms and conditions of this Agreement.

3.1. Included Information. The term "Confidential Information" means:

(a) any information disclosed by or on behalf of a Party (the "Disclosing Party") to the other Party (the "Receiving Party") whether provided orally or in writing and on any medium, concerning the Disclosing Party's business and/or operations and includes without limitation any materials, trade secrets, know-how, formulas, processes, algorithms, ideas, strategies, inventions, data, designs, flow charts, drawings, proprietary information, current or potential client details, employee details, business and marketing plans, financial and operational information, material or data relating to the current and/or future business and operations; and

(b) any analyses, compilations, studies, summaries, extracts or other documentation prepared by the Receiving Party or its Authorized Representatives based on Confidential Information disclosed by the Disclosing Party.

3.2. Excluded Information. The restrictions of this Agreement on use and disclosure of Confidential Information will not apply to:

(a) Public Information.Information that is or becomes publicly known without the breach of this Agreement.

(b) Already Known. Information that at the time of disclosure under this Agreement is already known to the Receiving Party without any restriction on its disclosure.

(c) Third Party Source. Information that is or subsequently comes into the possession of the Receiving Party from a third party without violation of any contractual or legal obligation.

(d) Independently Developed. Information that is independently developed by the Receiving Party without the use of Confidential Information or breach of this Agreement.

(e) Released. Information that is approved for disclosure in writing by the Disclosing Party.

[the Receiving Party will have the burden of proof regarding the applicability of any exception.]

3.3. Marking. All information disclosed under this Agreement is deemed Confidential Information whether or not it is so marked.

4. Protection of Confidential Information

4.1. Confidentiality. The Receiving Party agrees to hold Confidential Information in strict confidence during Protection Period in accordance with this Agreement.

4.2. Non-Use. The Receiving Party will not use Confidential Information without the prior written consent of the Disclosing Party, except in connection with the Purpose.

4.3. Non-Disclosure. The Receiving Party will not disclose any Confidential Information to third parties without the prior written consent of the Disclosing Party; provided that, the Receiving Party may disclose Confidential Information to its Authorized Representatives involved in the Purpose, to the extent necessary and on a need-to-know basis.

5. Non-Disclosure of Discussions and Relationship

Neither Party nor its Authorized Representatives, without the prior written consent of the other Party, will disclose to any person:

5.1. Discussions.The fact that any discussions or negotiations are taking place or have taken place between the Parties concerning a possible business transaction or business relationship between the Parties.

5.2. Disclosure of Information.The fact that Confidential Information has been made available to the Receiving Party.

5.3. Potential Relationship.The terms, conditions or other facts with respect to any potential or actual business relationship or transaction, including the status of any discussions.

6. Disclosure Required by Law

6.1. Notice. In the event that the Receiving Party becomes compelled by law to disclose any Confidential Information, the Receiving Party, if permitted by such law, will provide the Disclosing Party with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement.

6.2. Mandatory Disclosure. In the event that a protective order or other remedy is not obtained, or the Disclosing Party waives compliance with the provisions of this Agreement, the Receiving Party may, without liability, disclose Confidential Information which it is legally compelled to disclose.

6.3. Limited Disclosure. The Receiving Party further agrees that it will furnish only that portion of Confidential Information that is legally required to disclose and will make all reasonable efforts to obtain reliable assurances that confidential treatment will be afforded to Confidential Information.

7. Permitted Disclosure

7.1. Disclose to Employees. Parties shall limit dissemination of the Confidential Information to the Authorized Representatives who are required to have access to the Confidential Information, consistent with the Purpose of disclosure.

7.2. Employee Obligations. Parties agree to instruct all its Authorized Representatives not to disclose such confidential information to third parties. [each Authorized Representatives shall be individually bound by this Agreement.]

8. Representations and Warranties

8.1. Representations

(a) Authority. Each Party warrants that it has the authority to enter into this Agreement and further warrants that it has the right to disclose the Confidential Information.

(b) No Violations. Each Party represents to the other that the disclosure of the Confidential Information will not violate any proprietary rights of third parties and that the disclosure will not violate any contractual obligations which the Parties may have to any third party.

8.2. No Warranties. Confidential Information is provided "as is" and neither Party will be liable for the accuracy or completeness of the Confidential Information.

9. Acknowledgments

9.1. Ownership. The Receiving Party agrees and understands that all the rights to the trademarks, copyrights, patents, designs, and any other intellectual property in the Confidential Information are and shall remain the exclusive property of the Disclosing Party.

9.2. No Obligation.Neither party has any obligation under this Agreement to purchase from or furnish to the other party any products or services or to enter into any other agreement.

10. Covenants.

10.1. Standard of Care. The Receiving Party agrees to exercise at least the same degree of care as it uses with regard to its own Confidential Information but in no event less than a reasonable degree of care, in protecting the Disclosing Party's Confidential Information.

10.2. Modification of Confidential Information. The Receiving Party shall not copy, decompile, modify, reverse engineer or create derivative works out of any Confidential Information.

10.3. Return of Property. At the Disclosing Party's request, all Confidential Information that is in the possession of the Receiving Party will be promptly destroyed or returned to the Disclosing Party.

10.4. Notification. The Receiving Party will immediately notify the Disclosing Party upon discovery of any loss or unauthorized disclosure of the Confidential Information of the Disclosing Party.

11. Term

The term of this Agreement will commence on the Effective Date and continue [select: until terminated by either Party upon providing a written notice to the other Party/for period of (x) years].

12. Indemnity

The Receiving Party will indemnify and hold harmless the Disclosing Party[ and its respective Affiliates] against any losses, claims, damages or liabilities arising out of a breach of this Agreement by the Receiving Party or its Authorized Representatives, which will include reimbursement of all costs and expenses (including attorneys' fees) incurred in connection therewith.

13. Remedies

13.1. Injunctive Relief. The Parties hereby acknowledge and agree that monetary damages would not be a sufficient remedy for any breach of this Agreement and that the Disclosing Party will be entitled to seek injunctive or other equitable relief to remedy any such breach or threatened breach by the Receiving Party.

13.2. Remedies Cumulative. Such remedy will not be deemed to be the exclusive remedy for any breach of this Agreement, but will be in addition to all other rights and remedies available at law or in equity.

14. General Provisions

14.1. Amendment. This Agreement may be amended only in writing by the Parties.

14.2. Notices. All notices permitted or required under this Agreement will be in writing and will be delivered in person or mailed by first class, registered or certified mail, postage prepaid, to the address of the Party specified in this Agreement or such other address as either Party may specify in writing. Such notice will be deemed to have been given upon receipt.

14.3. Assignment. This Agreement will not be assigned by either Party without the prior written consent of the other Party.

14.4. Governing Law. This Agreement will be governed by and construed in accordance with the laws of [GOVERNING LAW STATE], without regard to its conflict of laws rules.

14.5. No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege.

14.6. Survival. The terms of this Agreement will survive the termination or expiration of this Agreement.

14.7. Entire Agreement. This Agreement constitutes the entire agreement between the Parties, and supersedes all prior agreements, representations, and understandings of the Parties, written or oral.

14.8. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original, but all of which, taken together, will constitute one and the same agreement.

14.9. Severability. In the event a court of law finds any provision of this Agreement void and unenforceable, the remaining provisions shall remain in full force and effect.

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