CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT Confidentiality-Agreement-(Sample)
http://www.docstoc.com/docs/6604369/Confidentiality-Agreement-(Sample)
Confidentiality Agreement (Sample) This Confidentiality Agreement ("Agreement") is made and effective the
___, 2009,
by and between
“
company”
("Owner") and
“company”
("Recipient"). 1.
Confidential Information
. Owner proposes to disclose certain of its confidential and proprietary information (the "Confidential Information") to Recipient. Confidential Information shall include all data, materials, products, technology, computer programs, specifications, manuals, business plans, software, marketing plans, financial information, and other information disclosed or submitted, orally, in writing, or by any other media, to Recipient by Owner. Confidential Information disclosed orally shall be identified as such within five (5) days of disclosure. Nothing herein shall require Owner to disclose any of its information. 2.
Recipient's Obligations
. A. Recipient agrees that the Confidential Information is to be considered confidential and proprietary to Owner and Recipient shall hold the same in confidence, shall not use the Confidential Information other than for the purposes of its business with Owner, and shall disclose it only to its officers, directors, or employees with a specific need to know. Recipient will not disclose, publish or otherwise reveal any of the Confidential Information received from Owner to any other party whatsoever except with the specific prior written authorization of Owner. B. Confidential Information furnished in tangible form shall not be duplicated by Recipient except for purposes of this Agreement. Upon the request of Owner, Recipient shall return all Confidential Information received in written or tangible form, including copies, or reproductions or other media containing such Confidential Information, within ten (10) days of such request. At Recipient's option, any documents or other media developed by the Recipient containing Confidential Information may be destroyed by Recipient. Recipient shall provide a written certificate to Owner regarding destruction within ten (10) days thereafter. 3.
Term
. The obligations of Recipient herein shall be effective (
time frame)
from the date Owner last discloses any Confidential Information to Recipient pursuant to this Agreement. Further, the obligation not to disclose shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against Recipient, nor by the rejection of any agreement between Owner and Recipient, by a trustee of Recipient in bankruptcy, or by the Recipient as a debtor-in-possession or the equivalent of any of the foregoing under local law. 4.
Other Information
. Recipient shall have no obligation under this Agreement with respect to Confidential Information which is or becomes publicly available without breach of this Agreement by Recipient; is rightfully received by Recipient without obligations of confidentiality; or is developed by Recipient without breach of this Agreement; provided, however, such Confidential Information shall not be disclosed until thirty (30) days after written notice of intent to disclose is given to Owner along with the asserted grounds for disclosure. 5.
No License
. Nothing contained herein shall be construed as granting or conferring any rights by license or otherwise in any Confidential Information. It is understood and agreed that neither party solicits any change in the organization, business practice, service or products of the other party, and that the disclosure of Confidential Information shall not be construed as evidencing any intent by a party to purchase any products or services of the other party nor as an encouragement to expend funds in development or research efforts. Confidential Information may pertain to prospective or unannounced products. Recipient agrees not to use any Confidential Information as a basis upon which to develop or have a third party develop a competing or similar product. 6.
No Publicity
. Recipient agrees not to disclose its participation in this undertaking, the existence or terms and conditions of the Agreement, or the fact that discussions are being held with Owner. 7.
Governing Law and Equitable Relief.
This Agreement shall be governed and construed in accordance with the laws of the United States and the State of
(State),
and Recipient consents to the exclusive jurisdiction of the state courts and U.S. federal courts located there for any dispute arising out of this Agreement. Recipient agrees that in the event of any breach or threatened breach by Recipient, Owner may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect Owner against any such breach or threatened breach. 8.
Final Agreement
. This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties. 9.
No Assignment
. Recipient may not assign this Agreement or any interest herein without Owner's express prior written consent. 10.
Severability
. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included. 11.
Notices
. Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services. If to Owner:
Name, Address
If to Recipient:
Name, Address
12.
No Implied Waiver
.
Either party's failure to insist in any one or more instances upon strict performance by the other party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof. 13.
Headings
. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
___________________________ ___________________________ Signature Printed Name and Date ___________________________ ___________________________ Signature Printed Name and Date
http://tradesecretshomepage.com/form1.html
CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
WHEREAS, [YOUR NAME] agrees to furnish _____________________ certain confidential information relating to ideas, inventions or products for the purposes of determining an interest in developing, manufacturing, selling and/or joint venturing;
WHEREAS, _____________________ agrees to review, examine, inspect or obtain such confidential information only for the purposes described above, and to otherwise hold such information confidential pursuant to the terms of this Agreement.
BE IT KNOWN, that [YOUR NAME] has or shall furnish to _____________________ certain confidential information and may further allow _____________________ the right to discuss or interview representatives of [YOUR NAME] on the following conditions:
1. _____________________ agrees to hold confidential or proprietary information or trade secrets ("confidential information") in trust and confidence and agrees that it shall be used only for the contemplated purposes, shall not be used for any other purpose, or disclosed to any third party.
2. No copies will be made or retained of any written information or prototypes supplied without the permission of [YOUR NAME].
3. At the conclusion of any discussions, or upon demand by [YOUR NAME], all confidential information, including prototypes, written notes, photographs, sketches, models, memoranda or notes taken shall be returned to [YOUR NAME].
4. Confidential information shall not be disclosed to any employee, consultant or third party unless they agree to execute and be bound by the terms of this Agreement, and have been approved by [YOUR NAME].
5. This Agreement and its validity, construction and effect shall be governed by the laws of [insert jurisdiction].
AGREED AND ACCEPTED BY:
Date:_______________
By_____________________________ Witness:___________________________
Title:____________________________
By______________________________
Title__________________________
http://en.wikipedia.org/wiki/Non-disclosure_agreement
Non-disclosure agreement
From Wikipedia, the free encyclopedia
A non-disclosure agreement (NDA), also known as a confidentiality agreement, confidential disclosure agreement (CDA), proprietary information agreement (PIA), or secrecy agreement, is a legal contract between at least two parties that outlines confidential material, knowledge, or information that the parties wish to share with one another for certain purposes, but wish to restrict access to by third parties. It is a contract through which the parties agree not to disclose information covered by the agreement. An NDA creates a confidential relationship between the parties to protect any type of confidential and proprietary information or trade secrets. As such, an NDA protects non-public business information.
NDAs are commonly signed when two companies, individuals, or other entities (such as partnerships, societies, etc.) are considering doing business and need to understand the processes used in each others business for the purpose of evaluating the potential business relationship. NDAs can be "mutual", meaning both parties are restricted in their use of the materials provided, or they can restrict the use of material by a single party.
It is also possible for an employee to sign an NDA or NDA-like agreement with an employer. In fact, some employment agreements will include a clause restricting employees' use and dissemination of company-owned "confidential information."
In some cases, the contract may state that the existence of the NDA itself cannot be disclosed.[1]Contents [hide]
1 Content
2 See also
3 References
4 External links
[edit]
Content
Many NDAs are unilateral, or one-way agreements,[citation needed] where one party wants to disclose certain information to another party but needs the information to remain secret for some reason, perhaps due to secrecy requirements required to satisfy patent laws[2] or to make sure that the other party does not take and use the disclosed information without compensating the discloser.
Another type of non-disclosure agreement is one that is a mutual agreement, where both parties will be supplying information that is intended to remain secret. This type of agreement is common when businesses are considering some kind of joint venture or merger.
Some practitioners insist on a mutual NDA in all cases, to encourage the drafter to make the provisions "fair and balanced" in case the drafter's receiving-party client later ends up as a disclosing party, or vice versa (not an uncommon occurrence).
A non-disclosure agreement can protect any type of information that is not generally known. However, non-disclosure agreements may also contain clauses that will protect the person receiving the information so that if they lawfully obtained the information through other sources they would not be obligated to keep the information secret.[3] In other words, the non-disclosure agreement typically only requires the receiving party to maintain information in confidence when that information has been directly supplied by the disclosing party. Ironically, however, it is sometimes easier to get a receiving party to sign a simple agreement that is shorter, less complex and does not contain safety provisions protecting the receiver.[citation needed]
Some common issues addressed in an NDA include:[4]
outlining the parties to the agreement;
the definition of what is confidential, i.e. the information to be held confidential. Modern NDAs will typically include a laundry-list of types of items which are covered, including unpublished patent applications, know-how, schema, financial information, verbal representations, customer lists, vendor lists, business practices/strategies, etc;
the disclosure period - information not disclosed during the disclosure period (e.g., one year after the date of the NDA) is not deemed confidential;
the exclusions from what must be kept confidential. Typically, the restrictions on the disclosure or use of the confidential data will be invalid if
the recipient had prior knowledge of the materials;
the recipient gained subsequent knowledge of the materials from another source;
the materials are generally available to the public; or
the materials are subject to a subpoena - although many practitioners regard that fact as a category of permissible disclosure, not as a categorical exclusion from confidentiality (because court-ordered secrecy provisions may apply even in case of a subpoena). In any case, a subpoena would more likely than not override a contract of any sort;
provisions restricting the transfer of data in violation of national security;
the term (in years) of the confidentiality, i.e. the time period of confidentiality;
the term (in years) the agreement is binding;
permission to obtain ex-parte injunctive relief;
the obligations of the recipient regarding the confidential information, typically including some version of obligations:
to use the information only for enumerated purposes;
to disclose it only to persons with a need to know the information for those purposes;
to use appropriate efforts (not less than reasonable efforts) to keep the information secure. Reasonable efforts is often defined as a standard of care relating to confidential information that is no less rigorous than that which the recipient uses to keep its own similar information secure; and
to ensure that anyone to whom the information is disclosed further abides by obligations restricting use, restricting disclosure, and ensuring security at least as protective as the agreement; and
types of permissible disclosure - such as those required by law or court order (many NDAs require the receiving party to give the disclosing party prompt notice of any efforts to obtain such disclosure, and possibly to cooperate with any attempt by the disclosing party to seek judicial protection for the relevant confidential information).
[edit]
See also
Arrow information paradox
Business broker
Form SF-312 classified information NDA
Glossary of legal terms in technology
Invention Secrecy Act (United States, 1951)
Non-compete agreement
[edit]
References
^ "Confidentiality Agreements". IPR Helpdesk, section 13. Retrieved 2007-12-11.
^ Understanding Confidentiality Agreements by David V. Radack ("Second, the use of confidentiality agreements can prevent the forfeiture of valuable patent rights.")
^ Intellectual Property: Using Confidentiality Agreements published by Yahoo! Small Business
^ Overview of Confidentiality Agreements by Mark J. Hanson, Joe R. Thompson and Joel J. Dahlgren
[edit]
External links
Confidentiality and Confidential Disclosure Agreements (CDA) booklet edited by the UK Intellectual Property Office (300 KB pdf file)
Confidentiality Agreements in IPR-Helpdesk, a web site sponsored by the European Commission
PRECUT multi-purpose nondisclosure agreement form with Curator's Notes, published under a Creative Commons license
http://www.freepatentforms.com/confidentiality1.htm
FREE CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
NOTICE: For a customizable confidentiality agreement, consider ConfidentialityWizard software program created by Michael Neustel (U.S. Patent Attorney)
THIS AGREEMENT, made this ____ day of ____________ (month), _____ (year), between _______________________, (hereinafter “Disclosing Party”), and __________________________ (hereinafter “Receiving Party”).
BACKGROUND
The Disclosing Party and Receiving Party wish to discuss and exchange certain items and information related to business programs, products, applications, systems, components, technologies and business topics (the “Invention”) which the parties hereto consider highly confidential and proprietary.
NOW THEREFORE, the parties hereto, intending to be legally bound in consideration of the mutual covenants and agreements set forth herein, hereby agree as follows:
1. DEFINITIONS
1.1. “Invention” shall mean all information relating to business programs, products, applications, systems, components, technologies and business topics.
1.2. “Confidential Information” shall mean all information provided by Disclosing Party with respect to the Invention regardless of whether it is written, oral, audio tapes, video tapes, computer discs, machines, prototypes, designs, specifications, articles of manufacture, drawings, human or machine readable documents. Confidential Information shall also include all information related to the Invention provided by Disclosing Party to Receiving Party prior to the signing of this agreement. Confidential Information shall not include any of the following:
(a) such information in the public domain at the time of the disclosure, or subsequently comes within the public domain without fault of the Receiving Party;
(b) such information which was in the possession of Receiving Party at the time of disclosure that may be demonstrated by business records of Receiving Party and was not acquired, directly or indirectly, from Disclosing Party; or
(c) such information which Receiving Party acquired after the time of disclosure from a third party who did not require Receiving Party to hold the same in confidence and who did not acquire such technical information from Disclosing Party.
1.3. “Disclosing Party” shall mean the party disclosing information to the other relating to the Invention.
1.4. “Receiving Party” shall mean the party receiving information from the other relating to the Invention.
2. USE OF CONFIDENTIAL INFORMATION
The Receiving Party agrees to:
(a) receive and maintain the Confidential Information in confidence;
(b) examine the Confidential Information at its own expense;
(c) not reproduce the Confidential Information or any part thereof without the express written consent of Disclosing Party;
(d) not, directly or indirectly, make known, divulge, publish or communicate the Confidential Information to any person, firm or corporation without the express written consent of Disclosing Party;
(e) limit the internal dissemination of the Confidential Information and the internal disclosure of the Confidential Information received from the Disclosing Party to those officers and employees, if any, of the Receiving Party who have a need to know and an obligation to protect it;
(f) not use or utilize the Confidential Information without the express written consent of Disclosing Party;
(g) not use the Confidential Information or any part thereof as a basis for the design or creation of any method, system, apparatus or device similar to any method, system, apparatus or device embodied in the Confidential Information unless expressly authorized in writing by Disclosing Party; and
(h) utilize the best efforts possible to protect and safeguard the Confidential Information from loss, theft, destruction, or the like.
3. RETURN OF CONFIDENTIAL INFORMATION
All information provided by the Disclosing Party shall remain the property of the Disclosing Party. Receiving Party agrees to return all Confidential Information to Disclosing Party within 15 days of written demand by Disclosing Party. When the Receiving Party has finished reviewing the information provided by the Disclosing Party and has made a decision as to whether or not to work with the Disclosing Party, Receiving Party shall return all information to the Disclosing Party without retaining any copies.
4. NON-ASSIGNABLE
This agreement shall be non-assignable by the Receiving Party unless prior written consent of the Disclosing Party is received. If this Agreement is assigned or otherwise transferred, it shall be binding on all successors and assigns.
5. GOVERNING LAW
This Agreement and all questions relating to its validity, interpretation, performance and enforcement (including, without limitation, provisions concerning limitations of actions), shall be governed by and construed in accordance with the laws of the State of _______________ (State), notwithstanding any conflict-of-laws doctrines of such state or other jurisdiction to the contrary, and without the aid of any canon, custom or rule of law requiring construction against the draftsman.
6. No License
Neither party does, by virtue of disclosure of the Confidential Information, grant, either expressly or by implication, estoppel or otherwise, any right or license to any patent, trade secret, invention, trademark, copyright, or other intellectual property right.
7. Binding Nature of Agreement
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns.
8. Provisions Separable
The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
9. ENTIRE AGREEMENT
This Agreement sets forth all of the covenants, promises, agreements, conditions and understandings between the parties and there are no covenants, promises, agreements or conditions, either oral or written, between them other than herein set forth. No subsequent alteration, amendment, change or addition to this Agreement shall be binding upon either party unless reduced in writing and signed by them.
10. Arbitration
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be resolved by arbitration conducted by the Commercial Division of the American Arbitration Association and in accordance with the rules thereof, conducted in Fargo, North Dakota, or in any other convenient forum agreed to in writing by the parties. Any arbitration award shall be final and binding, and judgment upon the award rendered pursuant to such arbitration may be entered in any court of proper jurisdiction. Notwithstanding the foregoing, either party may seek and obtain temporary injunctive relief from any court of competent jurisdiction against any improper disclosure of the Confidential Information.
IN WITNESS OF THEIR AGREEMENT, the parties have set their hands to it below effective the day and year first written above.
Disclosing Party Receiving Party
By: __________________________ By: __________________________
© Copyright 1993 R. Mark Halligan, Esq.
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