Who will be sharing confidential information?
Describe why the information is being shared. Courts read NDAs narrowly, so be specific.
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This Mutual Non-Disclosure Agreement (this “Agreement”) is entered into as of ____________ (the “Effective Date”) by and between ____________, with an address at ____________ (“First Party”), and ____________, with an address at ____________ (“Second Party”) (each a “Party” and together the “Parties”).
The Parties wish to disclose certain confidential information in connection with the following purpose: ____________ (the “Purpose”). Each Party may act as a disclosing party (“Disclosing Party”) or a receiving party (“Receiving Party”) under this Agreement.
“Confidential Information” means all non-public information disclosed by the Disclosing Party to the Receiving Party, whether oral, written, electronic, or in any other form, that is designated as confidential or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, business plans, financial information, customer and supplier lists, product designs, source code, trade secrets, know-how, and the existence and terms of the Parties' discussions. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) was rightfully known to the Receiving Party before disclosure; (c) is rightfully received from a third party without a duty of confidentiality; or (d) is independently developed by the Receiving Party without use of the Confidential Information.
The Receiving Party shall: (a) hold the Confidential Information in strict confidence and protect it with at least the same degree of care it uses for its own confidential information, and no less than reasonable care; (b) use the Confidential Information solely for the Purpose; (c) not disclose the Confidential Information to any third party except to its employees, agents, and advisors who have a need to know for the Purpose and who are bound by confidentiality obligations at least as protective as this Agreement; and (d) notify the Disclosing Party promptly upon discovery of any unauthorized use or disclosure.
If the Receiving Party is required by law, regulation, or court order to disclose Confidential Information, it shall (to the extent legally permitted) give the Disclosing Party prompt written notice so that the Disclosing Party may seek a protective order, and shall disclose only the portion legally required.
The obligations of confidentiality under this Agreement begin on the Effective Date and continue for 3 years from the date of the last disclosure of Confidential Information; provided that obligations with respect to trade secrets shall continue for as long as the information qualifies as a trade secret under applicable law.
Upon the Disclosing Party's written request, or upon termination of the Parties' discussions, the Receiving Party shall promptly return or destroy all Confidential Information and all copies, and upon request certify such return or destruction in writing, except for one archival copy retained solely to monitor compliance with this Agreement or as required by law.
Nothing in this Agreement grants the Receiving Party any license or ownership interest in the Confidential Information or any intellectual property of the Disclosing Party. Nothing in this Agreement obligates either party to proceed with any transaction, and either party may end discussions at any time.
The parties agree that unauthorized disclosure of Confidential Information may cause irreparable harm for which monetary damages would be inadequate. The Disclosing Party is therefore entitled to seek injunctive relief in addition to all other remedies available at law or in equity, without the requirement to post a bond.
This Agreement shall be governed by and construed in accordance with the laws of the State of ____________, without regard to its conflict-of-laws principles.
Any dispute arising out of or relating to this Agreement shall be resolved exclusively in the state or federal courts located in ____________, and each party consents to the personal jurisdiction of those courts.
If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect, and the invalid provision shall be modified to the minimum extent necessary to make it valid and enforceable.
No failure or delay by either party in exercising any right under this Agreement shall operate as a waiver of that right. A waiver of any breach shall not be construed as a waiver of any subsequent breach.
This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous understandings, agreements, negotiations, and discussions, whether oral or written. This Agreement may be amended only by a written instrument signed by both parties.
This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Signatures delivered electronically (including through a reliable electronic signature service) shall be deemed original signatures for all purposes, consistent with the U.S. ESIGN Act and applicable state law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date, intending to be legally bound.