MUTUAL CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
This Mutual Confidentiality and Nondisclosure Agreement (this “Agreement”) is made and entered into between the parties shown below as of the later date indicated below the parties’ signatures.
WHEREAS, Disclosing Party intends to disclose to Receiving Party, information regarding a potential business opportunity (“Opportunity”), and in that regard Disclosing Party intends to disclose to Receiving Party, both orally and in writing, certain confidential and proprietary information and documentation pertaining to Disclosing Party’s businesses, operation, and assets in furtherance of evaluating the possibility of entering the Opportunity with each other.
WHEREAS, the disclosing party ("Disclosing Party") wishes to protect and have the receiving party ("Receiving Party") maintain the confidentiality of such information and documentation as hereinafter described.
NOW, THEREFORE, in consideration for the foregoing Receiving Party and Disclosing Party hereby covenant and agree as follows:
1.Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects or by the viewing of product demonstrations (including without limitation documents, prototypes and equipment), which is designated or described by the disclosing party as “Confidential,” “Proprietary” or some similar designation, or which should reasonably be understood by the receiving party, because of the circumstances of disclosure or the nature of the information itself to be confidential or proprietary to the disclosing party. Confidential Information may also include information disclosed to a receiving party by third parties on behalf of the disclosing party. Confidential Information shall not include any information which (i) is publicly known through no action or inaction of the receiving party; (ii) was already in the possession of the receiving party at the time of disclosure without an obligation of confidentiality, direct or indirect, to the disclosing party; (iii) is obtained by the receiving party from an independent third party without a breach of such third party’s obligations of confidentiality; or (iv) is independently developed by the receiving party without use of or reference to materials provided by the disclosing party.
2.Non-use and Nondisclosure. Each party agrees that it will not use any Confidential Information of the other party for any purpose except for the Authorized Purpose. Each party agrees that it will not disclose any of the other party’s Confidential Information to anyone except for such party’s own directors, officers, employees, contractors and attorneys who are required to have the information in connection with the Authorized Purpose (“Representatives”). In the event that a receiving party is required by law to disclose Confidential Information obtained from the disclosing party, the receiving party shall give the disclosing party prompt written notice, if legally permissible, of such requirement as soon as possible prior to such disclosure and shall provide the disclosing party with assistance in obtaining an order protecting the information from disclosure.
3. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid the disclosure and the unauthorized use of the other party’s Confidential Information. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that each of its Representatives who have access to the other party’s Confidential Information has signed a non-use and nondisclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such Representative. Neither party shall make any copies of the other party’s Confidential Information without the disclosing party’s prior written consent, except to the extent required to evaluate the Opportunity. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information, and which are provided to the party hereunder.
4.No Obligation to Proceed and No Warranties. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright or any other proprietary right of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” AND NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
5.Competitive Businesses. Each party acknowledges that the other party may, now or in the future, be engaged in a business similar to or competitive with that of the other party and that each party hereto may, now or in the future, have under development (both internally and through third party vendors) projects related to the subject matter of the disclosures contemplated under this Agreement. Nothing contained in this Agreement shall limit or restrict in any way either party hereto from engaging in such business activities or developing such projects, except that each party hereto shall be bound by its agreements contained herein as they relate to Confidential Information.
6.Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies, notes and extracts thereof which are in the possession of the receiving party, shall be and remain the property of the disclosing party and shall be promptly returned to the disclosing party and/or destroyed upon the disclosing party’s written request.
7.Term of Confidentiality Obligations; Term of Agreement. This Agreement shall remain in effect until terminated by either party with written notice to the other party, but such termination shall have no effect on either party’s obligations hereunder with respect to Confidential Information already disclosed. The obligations of each receiving party hereunder as to any Confidential Information shall continue for a period of three (3) years from the date such Confidential Information is disclosed or if applicable until such information is no longer a trade secret of the disclosing party, whichever occurs last, and shall survive termination of this Agreement.
9.Miscellaneous
a) Entire Agreement; Modification. This Agreement sets forth the entire agreement and understanding of the parties hereto concerning the subject matter hereof, and, except as otherwise specifically provided below, supersedes all prior and contemporaneous correspondence, agreements, arrangements and understandings, both oral and written, between the parties hereto concerning the subject matter hereof. No modification hereof shall be binding upon the parties hereto except by written instrument duly executed by such parties or their duly authorized representatives. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns.
b) Invalidity of Particular Provisions. If any term or provision of this Agreement or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the other terms of this Agreement, or the application of such terms or provisions to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
c) Counterparts. This Agreement may be executed in any number of counterparts, including electronically, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
d) This Agreement may be delivered by email, and email copies of executed signature pages shall be binding as originals.
e) Interpretation. The paragraph headings of this Agreement are inserted for convenience only and shall not constitute a part of this Agreement in construing or interpreting any provision hereof. Whenever the context requires, words used in the singular shall be construed to include the plural and vice versa, and pronouns of any gender shall be deemed to include and designate the masculine, feminine or neuter gender.
f) Notices. All notices given under this Agreement must be in writing. A notice is effective upon receipt and shall be sent via one of the following methods: delivery in person, overnight courier service, certified or registered mail, postage prepaid, return receipt requested, or by any other means agreed to by the Parties, such as email.
g) This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party’s signature) will be deemed the Execution Date of this agreement.
h) Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
EACH PARTY REPRESENTS AND WARRANTS that it has authority to enter into this Agreement and lawfully make the disclosures contemplated hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated below.
PROACTIVE RISK INC.
____________________________________ Date: _________________________
Signature
By: <Officer of Company>
Its: <Title>
____________________________________ Date: ________________________
Signature
By: <<Client Name>>
Its: <<Title>>
This Mutual Confidentiality and Nondisclosure Agreement (this “Agreement”) is made and entered into between the parties shown below as of the later date indicated below the parties’ signatures.
WHEREAS, Disclosing Party intends to disclose to Receiving Party, information regarding a potential business opportunity (“Opportunity”), and in that regard Disclosing Party intends to disclose to Receiving Party, both orally and in writing, certain confidential and proprietary information and documentation pertaining to Disclosing Party’s businesses, operation, and assets in furtherance of evaluating the possibility of entering the Opportunity with each other.
WHEREAS, the disclosing party ("Disclosing Party") wishes to protect and have the receiving party ("Receiving Party") maintain the confidentiality of such information and documentation as hereinafter described.
NOW, THEREFORE, in consideration for the foregoing Receiving Party and Disclosing Party hereby covenant and agree as follows:
1.Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects or by the viewing of product demonstrations (including without limitation documents, prototypes and equipment), which is designated or described by the disclosing party as “Confidential,” “Proprietary” or some similar designation, or which should reasonably be understood by the receiving party, because of the circumstances of disclosure or the nature of the information itself to be confidential or proprietary to the disclosing party. Confidential Information may also include information disclosed to a receiving party by third parties on behalf of the disclosing party. Confidential Information shall not include any information which (i) is publicly known through no action or inaction of the receiving party; (ii) was already in the possession of the receiving party at the time of disclosure without an obligation of confidentiality, direct or indirect, to the disclosing party; (iii) is obtained by the receiving party from an independent third party without a breach of such third party’s obligations of confidentiality; or (iv) is independently developed by the receiving party without use of or reference to materials provided by the disclosing party.
2.Non-use and Nondisclosure. Each party agrees that it will not use any Confidential Information of the other party for any purpose except for the Authorized Purpose. Each party agrees that it will not disclose any of the other party’s Confidential Information to anyone except for such party’s own directors, officers, employees, contractors and attorneys who are required to have the information in connection with the Authorized Purpose (“Representatives”). In the event that a receiving party is required by law to disclose Confidential Information obtained from the disclosing party, the receiving party shall give the disclosing party prompt written notice, if legally permissible, of such requirement as soon as possible prior to such disclosure and shall provide the disclosing party with assistance in obtaining an order protecting the information from disclosure.
3. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid the disclosure and the unauthorized use of the other party’s Confidential Information. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that each of its Representatives who have access to the other party’s Confidential Information has signed a non-use and nondisclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such Representative. Neither party shall make any copies of the other party’s Confidential Information without the disclosing party’s prior written consent, except to the extent required to evaluate the Opportunity. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information, and which are provided to the party hereunder.
4.No Obligation to Proceed and No Warranties. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright or any other proprietary right of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth herein. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” AND NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
5.Competitive Businesses. Each party acknowledges that the other party may, now or in the future, be engaged in a business similar to or competitive with that of the other party and that each party hereto may, now or in the future, have under development (both internally and through third party vendors) projects related to the subject matter of the disclosures contemplated under this Agreement. Nothing contained in this Agreement shall limit or restrict in any way either party hereto from engaging in such business activities or developing such projects, except that each party hereto shall be bound by its agreements contained herein as they relate to Confidential Information.
6.Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by either party to the other party, and all copies, notes and extracts thereof which are in the possession of the receiving party, shall be and remain the property of the disclosing party and shall be promptly returned to the disclosing party and/or destroyed upon the disclosing party’s written request.
7.Term of Confidentiality Obligations; Term of Agreement. This Agreement shall remain in effect until terminated by either party with written notice to the other party, but such termination shall have no effect on either party’s obligations hereunder with respect to Confidential Information already disclosed. The obligations of each receiving party hereunder as to any Confidential Information shall continue for a period of three (3) years from the date such Confidential Information is disclosed or if applicable until such information is no longer a trade secret of the disclosing party, whichever occurs last, and shall survive termination of this Agreement.
- Governing Law, Jurisdiction. This Agreement shall in all respects be construed in accordance with and governed by the laws of the State of Delaware. Any suit involving any dispute or matter arising under this Agreement may only be brought in the courts of the aforementioned jurisdiction. Contractor hereby consents to the exercise of personal jurisdiction by any such court with respect to any such proceeding. Any controversy, claim, suit, injury or damage arising from or in any way related to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association then in effect and shall be heard by a single arbitrator in Essex County, New Jersey. Any such controversy, claim, suit, injury or damage shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any controversy, claim, suit, injury or damage of any other party. Company may seek any interim or preliminary relief from a court of competent jurisdiction in the aforementioned jurisdiction necessary to protect its rights pending the completion of arbitration. Each party shall assume its own costs of arbitration.
9.Miscellaneous
a) Entire Agreement; Modification. This Agreement sets forth the entire agreement and understanding of the parties hereto concerning the subject matter hereof, and, except as otherwise specifically provided below, supersedes all prior and contemporaneous correspondence, agreements, arrangements and understandings, both oral and written, between the parties hereto concerning the subject matter hereof. No modification hereof shall be binding upon the parties hereto except by written instrument duly executed by such parties or their duly authorized representatives. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns.
b) Invalidity of Particular Provisions. If any term or provision of this Agreement or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the other terms of this Agreement, or the application of such terms or provisions to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
c) Counterparts. This Agreement may be executed in any number of counterparts, including electronically, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
d) This Agreement may be delivered by email, and email copies of executed signature pages shall be binding as originals.
e) Interpretation. The paragraph headings of this Agreement are inserted for convenience only and shall not constitute a part of this Agreement in construing or interpreting any provision hereof. Whenever the context requires, words used in the singular shall be construed to include the plural and vice versa, and pronouns of any gender shall be deemed to include and designate the masculine, feminine or neuter gender.
f) Notices. All notices given under this Agreement must be in writing. A notice is effective upon receipt and shall be sent via one of the following methods: delivery in person, overnight courier service, certified or registered mail, postage prepaid, return receipt requested, or by any other means agreed to by the Parties, such as email.
g) This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party’s signature) will be deemed the Execution Date of this agreement.
h) Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
EACH PARTY REPRESENTS AND WARRANTS that it has authority to enter into this Agreement and lawfully make the disclosures contemplated hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated below.
PROACTIVE RISK INC.
____________________________________ Date: _________________________
Signature
By: <Officer of Company>
Its: <Title>
____________________________________ Date: ________________________
Signature
By: <<Client Name>>
Its: <<Title>>