Free Mutual NDA Template

PURPOSE AND SCOPE

The Parties wish to explore evaluation of a potential merger, acquisition, or corporate transaction (the "Permitted Purpose"). In connection therewith, each Party may disclose certain confidential and proprietary information to the other Party. This Agreement establishes the terms under which such information will be shared, received, and protected. Each Party may act as both a disclosing party and a receiving party with respect to different items of Confidential Information. The obligations of confidentiality set forth in this Agreement apply equally and reciprocally to both Parties.

DEFINITION OF CONFIDENTIAL INFORMATION

"Confidential Information" means any and all non-public, proprietary, or confidential information disclosed by either Party (the "Disclosing Party") to the other Party (the "Receiving Party"), whether orally, in writing, electronically, or by any other means, and whether or not marked as confidential, that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the foregoing, Confidential Information includes any "trade secret" within the meaning of the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1839(3) ("DTSA"), the Uniform Trade Secrets Act ("UTSA") as enacted in the applicable state (e.g., the California Uniform Trade Secrets Act, Cal. Civ. Code §§ 3426-3426.11 ("CUTSA"), and analogous state enactments), and any information the theft of which may be criminally actionable under 18 U.S.C. § 1832. Confidential Information includes, without limitation: (a) business plans, strategies, financial data, projections, and budgets; (b) customer and supplier lists, contact information, and purchasing histories; (c) technical data, trade secrets, inventions, algorithms, source code, and know-how; (d) marketing plans, pricing information, and sales data; (e) personnel information and organizational structures; (f) product designs, specifications, and prototypes; and (g) any analyses, compilations, studies, or other documents prepared by the Receiving Party that contain or reflect the Disclosing Party's Confidential Information.

OBLIGATIONS OF RECEIVING PARTY

Each Party, when acting as the Receiving Party, agrees to: (a) hold all Confidential Information of the Disclosing Party in strict confidence using at least the same degree of care that it uses to protect its own most sensitive confidential information, but in no event less than the reasonable measures required to maintain trade secret status under 18 U.S.C. § 1839(3)(A) and UTSA § 1(4)(ii); (b) not disclose, publish, or disseminate any Confidential Information to any third party without the prior written consent of the Disclosing Party; (c) use the Confidential Information solely for the Permitted Purpose and for no other purpose whatsoever, it being acknowledged that misappropriation of trade secrets is actionable under 18 U.S.C. § 1836 and analogous state trade secret statutes; (d) limit internal access to Confidential Information to those employees, officers, directors, agents, and professional advisors who have a demonstrable need to know such information in connection with the Permitted Purpose and who are bound by written confidentiality obligations no less protective than those contained herein; (e) be responsible for any breach of this Agreement by any of its employees, officers, directors, agents, or professional advisors to whom it has disclosed Confidential Information; and (f) promptly notify the Disclosing Party in writing upon becoming aware of any unauthorized disclosure, use, or loss of Confidential Information.

STANDARD EXCLUSIONS

The obligations of confidentiality under this Agreement shall not apply to any information that the Receiving Party can demonstrate by competent evidence: (a) was already in the public domain at the time of disclosure, or subsequently becomes publicly available through no fault, act, or omission of the Receiving Party; (b) was already known to or in the legitimate possession of the Receiving Party at the time of disclosure, as evidenced by the Receiving Party's contemporaneous written records; (c) is independently developed by the Receiving Party without reference to, reliance upon, or use of any Confidential Information of the Disclosing Party, as demonstrated by documented evidence; or (d) is disclosed to the Receiving Party on a non-confidential basis by a third party who is not, to the Receiving Party's knowledge, under any obligation of confidentiality with respect to such information. The burden of proving that any of these exclusions applies shall rest with the Party claiming the exclusion.

COMPELLED DISCLOSURE

If the Receiving Party is compelled by applicable law, regulation, legal process, or valid order of a court or governmental authority to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall: (a) provide the Disclosing Party with prompt written notice of such requirement prior to any disclosure (to the extent legally permitted) so that the Disclosing Party may seek a protective order, confidential treatment, or other appropriate remedy; (b) cooperate reasonably with the Disclosing Party, at the Disclosing Party's expense, in any effort to resist, limit, or narrow the scope of the required disclosure; and (c) disclose only that portion of the Confidential Information that is legally required to be disclosed, taking all reasonable steps to preserve the confidentiality of the remaining Confidential Information. Any Confidential Information disclosed pursuant to a legal compulsion shall retain its confidential character for all other purposes under this Agreement.

TERM AND TERMINATION

This Agreement shall become effective as of the Effective Date and shall remain in full force and effect for 3 years from the Effective Date (the "Term"), unless earlier terminated by either Party upon thirty (30) days' prior written notice to the other Party. Upon expiration or termination of this Agreement, the obligations of confidentiality set forth herein shall survive for a period of two (2) years following the date of expiration or termination with respect to all Confidential Information disclosed during the Term. Either Party may terminate this Agreement at any time during the Term by providing thirty (30) days' prior written notice to the other Party.

DTSA WHISTLEBLOWER IMMUNITY NOTICE - 18 U.S.C. § 1833(B)

Pursuant to 18 U.S.C. § 1833(b), an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (i) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, provided the individual files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order. This notice is provided pursuant to 18 U.S.C. § 1833(b)(3) and is required for each Party, as a Disclosing Party, to preserve its right to seek exemplary damages and attorney's fees under the DTSA, 18 U.S.C. § 1836(b)(3)(C)-(D).

MARKING REQUIREMENTS

All Confidential Information disclosed in written, electronic, or other tangible form shall be clearly marked with the legend "Confidential," "Proprietary," or a similar designation at the time of disclosure. For Confidential Information disclosed orally or visually, the Disclosing Party shall identify such information as confidential at the time of disclosure and shall provide a written summary of the Confidential Information to the Receiving Party within ten (10) business days following the oral or visual disclosure. Notwithstanding the foregoing, the failure to mark or identify information as confidential shall not affect the confidential nature of such information if a reasonable person would understand it to be confidential given the nature of the information and the circumstances of disclosure.

RETURN OR DESTRUCTION OF INFORMATION

Upon written request by the Disclosing Party, or upon expiration or termination of this Agreement, the Receiving Party shall, at the Disclosing Party's election, promptly return or certifiably destroy all Confidential Information of the Disclosing Party and all copies, reproductions, summaries, analyses, extracts, or derivatives thereof in any form or medium, whether in the Receiving Party's possession or in the possession of any of its representatives. The Receiving Party shall provide written certification of such return or destruction within fifteen (15) business days of the Disclosing Party's request. Notwithstanding the foregoing, the Receiving Party may retain one archival copy of the Confidential Information solely for the purpose of monitoring compliance with this Agreement, provided that such retained copy remains subject to the confidentiality obligations of this Agreement.

RESIDUAL KNOWLEDGE

Notwithstanding any other provision of this Agreement, either Party shall be free to use for any purpose the residual knowledge, general skills, experience, ideas, concepts, techniques, and know-how that are retained in the unaided memories of its personnel who have had access to the other Party's Confidential Information in the course of performing work under or in connection with this Agreement, provided that: (a) such use does not constitute a disclosure of specific Confidential Information of the other Party; (b) such personnel have not intentionally memorized the other Party's Confidential Information for the purpose of circumventing the protections of this Agreement; and (c) such use does not infringe upon any patent, copyright, trademark, or other intellectual property right of the other Party. This Section shall not be construed as granting a license under any intellectual property rights of either Party. For the avoidance of doubt, nothing in this Section relieves either Party of its obligation to protect Confidential Information that is in tangible form or that has been specifically identified as confidential.

REMEDIES

The Parties acknowledge and agree that any breach or threatened breach of this Agreement may cause the non-breaching Party irreparable harm for which monetary damages alone would be an inadequate remedy. Accordingly, each Party shall be entitled to seek injunctive or other equitable relief in any court of competent jurisdiction to prevent or restrain any actual or threatened breach of this Agreement, without the necessity of proving actual damages, posting any bond or other security, or establishing that monetary damages would be an inadequate remedy. Such equitable relief shall be in addition to, and not in lieu of, any other remedies that may be available at law or in equity, including without limitation the recovery of monetary damages. In any action, suit, or proceeding arising out of or relating to this Agreement, including any action to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party its reasonable attorneys' fees, expert witness fees, costs of investigation, and court costs incurred in connection with such action, in addition to any other relief to which such prevailing party may be entitled.

DISPUTE RESOLUTION

Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof, shall be settled by binding arbitration administered under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. The arbitration shall be conducted by a single arbitrator selected in accordance with the AAA Rules. The arbitration shall take place in the State of Delaware. The arbitrator's decision shall be final and binding upon the Parties, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall have authority to award any form of relief that would be available in a court of law, including injunctive relief. The prevailing party in any arbitration shall be entitled to recover its reasonable attorneys' fees and costs from the non-prevailing party. Notwithstanding the foregoing, either Party may seek temporary or preliminary injunctive relief from a court of competent jurisdiction to prevent irreparable harm pending the outcome of arbitration.

GOVERNING LAW

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Delaware (including, where applicable, that State's enactment of the Uniform Trade Secrets Act), together with applicable federal law including the Defend Trade Secrets Act, 18 U.S.C. §§ 1836 et seq., in each case without regard to its conflict of laws principles or the conflict of laws principles of any other jurisdiction that would cause the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

ASSIGNMENT

Neither Party may assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed. Any attempted assignment, delegation, or transfer in violation of this Section shall be null and void and of no force or effect. Notwithstanding the foregoing, either Party may assign this Agreement without the other Party's consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that the assignee agrees in writing to be bound by the terms and conditions of this Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

NO LICENSE OR OWNERSHIP

Nothing in this Agreement shall be construed as granting to either Party any license, right, title, or interest in or to any Confidential Information of the other Party, or in any intellectual property rights therein. All Confidential Information shall remain the sole and exclusive property of the Disclosing Party. No license under any patent, copyright, trademark, trade secret, or other intellectual property right is granted or implied by the disclosure of Confidential Information under this Agreement. Neither Party is obligated by this Agreement to disclose any Confidential Information to the other Party or to enter into any further agreement or transaction.

NO WARRANTY

ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, OR NON-INFRINGEMENT. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY CONFIDENTIAL INFORMATION PROVIDED HEREUNDER. Neither Party shall have any liability to the other Party or to any third party resulting from the use of or reliance upon any Confidential Information, except as may be expressly set forth in a separate written agreement between the Parties.

GENERAL PROVISIONS

Entire Agreement: This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous discussions, negotiations, understandings, and agreements, whether written or oral, relating to such subject matter. Amendment: No amendment, modification, or waiver of any provision of this Agreement shall be valid or binding unless made in writing and signed by authorized representatives of both Parties. Severability: If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, or if modification is not possible, such provision shall be severed from this Agreement and the remaining provisions shall remain in full force and effect. Waiver: The failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of that Party's right to enforce such provision or any other provision in the future. Counterparts: This Agreement may be executed in two or more counterparts, including electronic counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Notices: All notices required or permitted under this Agreement shall be in writing and shall be delivered by hand, sent by nationally recognized overnight courier, or sent by certified mail, return receipt requested, to the addresses set forth above or to such other address as either Party may designate in writing from time to time.