C
cautious
Guest
I am trying to protect a business concept as it may be patentable.
As the recipient, how well does the following mutual NDA protect my rights? Are there any GLARING faults especially as to WHEN the agreement terminates.
ie. will xx still be obliged to maintain confidentiality
after they return my proposal?
I am in the UK - xx are in the US.
Thank you
Cautious
------------
Mutual Non-Disclosure Agreement
This Agreement is made on the ___ day of, by and between xx and ---------------- located at ----------------------------("Recipient").
xx is in the business of ------------
Recipient is in the business described in Exhibit A;
xx and Recipient are pursuing discussions to further the Business Purpose described in Exhibit A (the "Business Purpose");
xx and Recipient recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both parties to disclose Confidential Information (as defined below) orally and/or in writing. Both parties intend that any Confidential Information disclosed by either party shall be used by the other party only to further the Business Purpose. Further, both parties intend that any Confidential Information disclosed shall be protected from further disclosure by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and sharing of information between the parties, and the premises, conditions, covenants and warranties herein contained, the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings:
(a) "Confidential Information" shall mean:
(i) Only that information disclosed in tangible form by one party to the other party and specifically marked at the time of disclosure as "confidential," "proprietary," or by any other appropriate legend clearly indicating the proprietary nature of the information; and
(ii) Any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence.
(b) "Disclosing Party" shall mean the party disclosing Confidential Information.
(c) "Receiving Party" shall mean the party receiving disclosure of the Confidential Information.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one party to the other party. This Agreement shall apply to Confidential Information of the parties' parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the parties' parent, subsidiary and related companies.
3. Non-Disclosure Obligation. Each party agrees:
(a) To hold the other party's Confidential Information in strict confidence;
(b) To exercise at least the same care in protecting the other party's Confidential Information from disclosure as the party uses with regard to its own Confidential Information;
(c) Not to disclose such Confidential Information to third parties; and
(d) Not to use any Confidential Information for any purpose except for the Business Purpose.
4. Disclosure to Employees. Each party may disclose the other party's Confidential Information to its responsible employees with a bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each party agrees to bind all such employees not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party.
5. Non-Confidential Information. Confidential information shall not include information which:
(a) Is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry of the Disclosing Party, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) Was acquired by the Receiving Party before receiving such information from the Disclosing Party and without restriction as to use or disclosure;
(c) Is hereafter rightfully furnished to the Receiving Party by a third party, without restriction as to use or disclosure;
(d) Is information which the Receiving Party can document was independently developed by the Receiving Party;
(e) Is required to be disclosed pursuant to law, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure;
(f) Is disclosed with the prior written consent of the Disclosing Party.
6. Removal of Confidential Materials. Each party agrees not to remove any materials or tangible items containing any of the other party's Confidential Information from the premises of the Disclosing Party without the Disclosing Party's consent. Each party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including without limitation that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made.
7. Return of Confidential Information. Upon the Disclosing Party's request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party's Confidential Information and all copies thereof.
8. No Grant of Rights. Each party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party's Confidential Information except as specified in this Agreement.
9. Equitable and Legal Relief. Each party acknowledges that all of the Disclosing Party's Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Accordingly, each party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining breach of this Agreement and/or disclosure of the Confidential Information. Each party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
10. Termination. This Agreement shall remain in effect until neither party is in possession of the other party's Confidential Information.
11. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto.
12. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
13. Governing Law; Attorneys' Fees. This Agreement shall be governed by the laws of the State of Washington applicable to agreements made and to be wholly performed therein, without reference to or application of principles of choice of law. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and expenses.
14. Waiver. No waiver by either party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives on the date set forth above.
xx
Signature Signature
Name (Printed)
Dated: Dated:
Exhibit A
Business of Recipient:
Business Purpose of Discussions Between xx and Recipient:
To investigate possible collaboration with regard to Recipient's business proposal.
As the recipient, how well does the following mutual NDA protect my rights? Are there any GLARING faults especially as to WHEN the agreement terminates.
ie. will xx still be obliged to maintain confidentiality
after they return my proposal?
I am in the UK - xx are in the US.
Thank you
Cautious
------------
Mutual Non-Disclosure Agreement
This Agreement is made on the ___ day of, by and between xx and ---------------- located at ----------------------------("Recipient").
xx is in the business of ------------
Recipient is in the business described in Exhibit A;
xx and Recipient are pursuing discussions to further the Business Purpose described in Exhibit A (the "Business Purpose");
xx and Recipient recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or both parties to disclose Confidential Information (as defined below) orally and/or in writing. Both parties intend that any Confidential Information disclosed by either party shall be used by the other party only to further the Business Purpose. Further, both parties intend that any Confidential Information disclosed shall be protected from further disclosure by the terms of this Agreement.
NOW, THEREFORE, in consideration of the discussions and sharing of information between the parties, and the premises, conditions, covenants and warranties herein contained, the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings:
(a) "Confidential Information" shall mean:
(i) Only that information disclosed in tangible form by one party to the other party and specifically marked at the time of disclosure as "confidential," "proprietary," or by any other appropriate legend clearly indicating the proprietary nature of the information; and
(ii) Any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in confidence.
(b) "Disclosing Party" shall mean the party disclosing Confidential Information.
(c) "Receiving Party" shall mean the party receiving disclosure of the Confidential Information.
2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one party to the other party. This Agreement shall apply to Confidential Information of the parties' parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein shall apply to the parties' parent, subsidiary and related companies.
3. Non-Disclosure Obligation. Each party agrees:
(a) To hold the other party's Confidential Information in strict confidence;
(b) To exercise at least the same care in protecting the other party's Confidential Information from disclosure as the party uses with regard to its own Confidential Information;
(c) Not to disclose such Confidential Information to third parties; and
(d) Not to use any Confidential Information for any purpose except for the Business Purpose.
4. Disclosure to Employees. Each party may disclose the other party's Confidential Information to its responsible employees with a bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each party agrees to bind all such employees not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the Disclosing Party.
5. Non-Confidential Information. Confidential information shall not include information which:
(a) Is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the industry of the Disclosing Party, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;
(b) Was acquired by the Receiving Party before receiving such information from the Disclosing Party and without restriction as to use or disclosure;
(c) Is hereafter rightfully furnished to the Receiving Party by a third party, without restriction as to use or disclosure;
(d) Is information which the Receiving Party can document was independently developed by the Receiving Party;
(e) Is required to be disclosed pursuant to law, provided the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure;
(f) Is disclosed with the prior written consent of the Disclosing Party.
6. Removal of Confidential Materials. Each party agrees not to remove any materials or tangible items containing any of the other party's Confidential Information from the premises of the Disclosing Party without the Disclosing Party's consent. Each party agrees to comply with any and all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including without limitation that the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made.
7. Return of Confidential Information. Upon the Disclosing Party's request, the Receiving Party will promptly return to the Disclosing Party all materials or tangible items containing the Disclosing Party's Confidential Information and all copies thereof.
8. No Grant of Rights. Each party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to use any of the Disclosing Party's Confidential Information except as specified in this Agreement.
9. Equitable and Legal Relief. Each party acknowledges that all of the Disclosing Party's Confidential Information is owned solely by the Disclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Accordingly, each party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent jurisdiction enjoining breach of this Agreement and/or disclosure of the Confidential Information. Each party shall also have the right to pursue any other rights or remedies available at law or equity for such a breach.
10. Termination. This Agreement shall remain in effect until neither party is in possession of the other party's Confidential Information.
11. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6, sets forth the entire agreement between the parties with respect to the subject matter hereof, and may not be modified or amended except by written agreement executed by the parties hereto.
12. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this Agreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.
13. Governing Law; Attorneys' Fees. This Agreement shall be governed by the laws of the State of Washington applicable to agreements made and to be wholly performed therein, without reference to or application of principles of choice of law. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and expenses.
14. Waiver. No waiver by either party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of any other provision of this Agreement. No waiver by either party, whether express or implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives on the date set forth above.
xx
Signature Signature
Name (Printed)
Dated: Dated:
Exhibit A
Business of Recipient:
Business Purpose of Discussions Between xx and Recipient:
To investigate possible collaboration with regard to Recipient's business proposal.