MUTUAL NONDISCLOSURE & CONFIDENTIALITY AGREEMENT

              

 

            This MUTUAL NONDISCLOSURE AND CONFIDENTIALITY AGREEMENT (the “Agreement”), entered into this                        day of                           ,                 , by and between                                                                 , its officers, directors, employees, subcontractors, agents, representatives, successors, assigns, and its affiliates (collectively, "FIRSTPARTY"), shall be engaged in discussions with                                                                        , its officers, directors, employees, subcontractors, agents, representatives, successors, assigns, and its affiliates (collectively, "SECONDPARTY"), for the purpose of preventing the disclosure of certain confidential information in the course of, and subsequent to actual or potential business ventures, transactions, projects, and prospects involving                                                                                               (the “Related Business").

 

1.            Confidential Information.  In the course of each party’s Related Business, FIRSTPARTY and SECONDPARTY (the "Parties") understand that they shall receive, obtain, prepare or create non-public, sensitive or proprietary information, now and in the future, in regard to the Parties, the Parties' respective clients and properties, projects, products or services, which information may be oral, electronic or written (collectively, the "Information").  The Information includes, but is not limited to:

 

a.            All information that is currently held or subsequently acquired by FIRSTPARTY or SECONDPARTY, and which is not generally known to the public and which provides or may provide a competitive advantage;

 

b.            All information that is currently held or subsequently acquired by FIRSTPARTY or SECONDPARTY, and which is valuable or potentially valuable due to its secret nature or limited public awareness; and

 

c.            All business-related, technical, or scientific information that is currently held or subsequently acquired by FIRSTPARTY or SECONDPARTY, and which is the subject of efforts to keep secret, which efforts are reasonable under the circumstances.

 

            Information may be embodied in written or electronic notes, scripts, screenplays, teleplays, synopses, treatments, analyses, compilations, audio/visual recordings and films, photos, blueprints, inventions, prototypes, models, equipment, substances, drawings, illustrations, artwork, diagrams, specifications, studies, reports, interpretations or other documents or things regarding the Parties and the prospective or actual properties, projects, products or services whether received, obtained, prepared or created by the Parties or their respective employees, subcontractors, representatives, agents or assigns. 

 

            Information may relate to or consist of designs, processes, procedures, formulae, improvements, proprietary concepts, data, specifications, marketing strategies, system design or configuration, products planning information, plans, finance, operations, customer relationships, customer profiles, sales estimates, business plans, and business performance results, software, source code, object code, flow charts, databases, inventions, information, know-how, show-how and trade secrets, whether or not patentable or copyrightable.

 

            With respect to any item of information, the party disclosing such information shall be referred to as the "Disclosing Party," and the party receiving such information shall be referred to as the "Receiving Party."

 

2.            Nondisclosure & Confidentiality Obligations.  Accordingly, it is agreed by the Parties that:

 

a.            The Party in receipt of Information (the "Receiving Party") will limit access to the Information, and not disclose or publish the Information, except to officers, directors, employees, subcontractors, representatives, agents, and assigns (the "Receiving Party's Agents") as to whom there is a necessity for possession of such Information, with respect to the Receiving Party’s Business.

 

b.            With regard to the Parties' respective Receiving Party's Agents, the Receiving Party will: (i)            inform such agents of the proprietary nature of the Information and of the terms and obligations of this Mutual Nondisclosure and Confidentiality Agreement; and (ii)            execute other reasonable measures to ensure the compliance with the terms of this Agreement, including reasonable instruction and execution of appropriate agreements.

 

c.            The Receiving Party will keep confidential and not disclose to, or cause or allow to be disclosed to, any individual or entity other than those persons or entities permitted under paragraph 2(b), the Information, except:: (i) when it has been authorized in writing by the Disclosing Party; and (ii) where it may be necessary in order for such other person or entity to perform services in furtherance of the Disclosing Party’s business.

 

d.            In protecting the integrity and security of the Disclosing Party's Information, the Receiving Party will exercised a level of care equivalent to that level exercised by the Receiving Party with respect to its own Information, but in no event will the Receiving Party exercised less than a reasonable degree of care with respect to the Disclosing Party's Information.

 

e.            Upon receipt of Information, the Receiving Party and the Receiving Party's Agents will hold the Information in trust for the benefit of the Disclosing Party and will use the Information only for the purpose of furthering the Disclosing Party’s business, and for no other purpose.  The Receiving Party shall not use, or cause or allow to be used for the benefit of any individual or entity other than the Disclosing Party, any part of the Information obtained:  (i) from the Disclosing Party or its employees, subcontractors, representatives, agents, and assigns; or (ii) in discussions relating to, performance of the work of, or other dealings regarding the Disclosing Party business.

 

f.            At the Disclosing Party's request, the Receiving Party will surrender to the Disclosing Party all documents, notes, records, drawings, and other repositories of or containing the Disclosing Party's Information (and all copies of the same).  On return of such materials, the surrendering party agrees to certify in writing that all of the foregoing materials have been surrendered to the Disclosing Party.

 

g.            The Receiving Party agrees to indemnify and hold harmless the Disclosing Party against any and all losses, damages, claims, or expenses incurred or suffered by the Disclosing Party as a result of a breach by the Receiving Party or the Receiving Party's officers, directors, employees, representatives or assigns.

 

h.            Any person to whom the Receiving Party's Agents supply the Information will be informed by such agent(s) of the confidential nature of the Information and shall agree to be bound by this Agreement prior to the conveyance of such Information.  The Receiving Party further agrees to obtain a fully executed "Subcontractor Nondisclosure Agreement," the form of which is attached as "Exhibit A", prior to divulging any confidential, sensitive or proprietary information, to persons or entities who are engaged by the Receiving Party for services mutually contemplated by the Parties.

 

3.            Excluded Information.  The obligations assumed by the Parties shall not apply to any Information that::

 

            a.            has come into the public domain through no fault of or action by the Parties;

 

b.            is lawfully in possession of the Receiving Party prior to the time of disclosure by the Disclosing Party;

 

c.            is required to be disclosed in response to official inquiries from any governmental agency, judicial or administrative proceeding, or order, provided that the Receiving Party shall: (i) promptly notify the Disclosing Party of such inquiry, proceeding or order, so the Disclosing Party may seek an appropriate protective order or waive compliance with this agreement; and (ii) in cases where reasonable notice to the Disclosing Party is not practical or is not effected, assert and pursue all reasonable legal defenses, privileges and remedies for maintaining the integrity and nondisclosure of the Information;

 

d.            is obtained, after the date of this Agreement, by the Parties from any third party that is lawfully in possession of such Information and not in violation of any contractual, fiduciary or legal obligation to the Party whose Information has been disclosed; or

 

e.            is developed subsequently and independently by employees, consultants and or agents of the Receiving Party without reference to any Information disclosed under this Agreement.

 

4.            Remedies.  If the Parties or their respective officers, directors, or employees fail to meet or perform any of the Nondisclosure & Confidentiality Obligations described in paragraph 2, such failure or nonperformance shall constitute a breach under this Agreement causing irreparable injury, the amount of which may be difficult to ascertain.  Therefore, the nonbreaching Party shall be entitled to injunctive relief against the breaching party.  Furthermore, it is agreed that a breach of this Agreement shall: cause the breaching party to be liable for all damages resulting therefrom, including, but not limited to, lost profits; and entitle the nonbreaching party to all remedies otherwise available at law or in equity.

 

5.            Miscellaneous. 

 

            a.            Assignment.  This Agreement and the Receiving Party's described obligations shall be binding on the representatives, assigns, and successors of the Receiving Party.  This Agreement and the obligations running to the Disclosing Party shall inure to the benefit of the representatives, assigns and successors of the Disclosing Party. 

 

b.            Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts fully performed and executed therein.

 

c.            Entire Agreement.  This Agreement constitutes the sole understanding of the parties regarding nondisclosure, confidentiality, use and misappropriation of the Information, and may not be amended or modified except in writing signed by each of the parties to the Agreement.

 

d.            Attorney's Fees.  If any action is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees and costs of enforcement.

 

e.            Signatures.  A facsimile, telecopied or other electronically transmitted signature of any person executing Exhibit A, Subcontractor Nondisclosure Agreement, shall be construed and have the same legally binding effect for all purposes as an original execution signature thereupon.

 

f.            Nonwaiver.  No failure by the nonbreaching party to exercise, and no delay in exercising any right shall operate as a waiver of that right, nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of a right, power or privilege granted by this Agreement or otherwise.

 

Acknowledged and Agreed this                  day of                                ,              

 

                                               

FIRST PARTY                                                SECOND PARTY

                                                                       

By:                                                                   By:                                                      

 

Its:                                                                    Its:                                                                 

                                                                                                              

 

EXHIBIT A

SUBCONTRACTOR NONDISCLOSURE AGREEMENT

                       

 

                                                            , an individual ("CONTRACTOR") shall be engaged as an independent contractor and consultant for                            ("FIRSTPARTY"), to perform work for FIRSTPARTY and its affiliates in regard to                                                                                                                                                                               , as provided in the "Independent Contractor Consultant Agreement" executed between FIRSTPARTY and CONTRACTOR concurrently herewith.  In the performance of such work, CONTRACTOR shall receive, obtain, prepare or create non-public, sensitive or proprietary information, now and in the future, in regard to FIRSTPARTY and certain FIRSTPARTY properties, projects, products or services, whether oral or written (collectively, "Information"). 

 

                        Accordingly, it is agreed that CONTRACTOR's employees, subcontractors, representatives, agents, and assigns (collectively, "Representatives") will keep confidential and not disclose, or cause or allow to be disclosed, to any individual or other entity, any part of the Information, as defined in this paragraph; except when it may be necessary, and has been authorized in writing by FIRSTPARTY, to supply such Information to others in order to perform services at the request of FIRSTPARTY.  The Information may relate to or consist of, without limitation, designs, processes, procedures, formulae, improvements, proprietary concepts, data, specifications, marketing strategies, system design or configuration, products planning information, plans, finance, operations, customer relationships, customer profiles, sales estimates, business plans, and business performance results, software, source code, object code, flow charts, databases, inventions, information, know-how, show-how and trade secrets, whether or not patentable or copyrightable. Information may be embodied without limitation in written or electronic notes, scripts, screenplays, teleplays, synopses, treatments, analyses, compilations, audio/visual recordings and films, photos, blueprints, inventions, prototypes, models, equipment, substances, drawings, illustrations, artwork, diagrams, specifications, studies, reports, interpretations or other documents or things regarding the Parties and the prospective or actual properties, projects, products or services whether received, obtained, prepared or created by the Parties or their respective employees, subcontractors, representatives, agents or assigns.

 

                        CONTRACTOR shall be responsible for any breach of this Agreement by CONTRACTOR or his Representatives;  it being understood that any person or other entity to whom CONTRACTOR or his Representatives supply the Information will be informed of the confidential nature of the Information and shall have agreed to be bound by this Confidentiality and Nondisclosure Agreement.

 

            CONTRACTOR and his Representatives shall not, at any time after execution of this Agreement, use, or cause or allow to be used, any part of the Information obtained in discussions, performance of the work or other dealings regarding FIRSTPARTY for the benefit of any individual or entity other than FIRSTPARTY.

 

                        If CONTRACTOR or his Representatives disclose, or cause or allow to be disclosed, any part of the Information, such disclosure shall constitute a breach under this Agreement causing irreparable injury for which FIRSTPARTY shall be entitled to injunctive relief against CONTRACTOR.  Furthermore, it is agreed that such breach of this Agreement shall cause CONTRACTOR to be liable for all damages resulting therefrom, including, but not limited to, lost profits.

 

                        This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts fully performed and executed therein.

 

 

 

Confirmed and Agreed to:

 

                                                            CONTRACTOR

 

Dated: ________________                ______________________________