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: __________________________
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