The need for nondisclosure agreements
When contractors, consultants, or third-party vendors
work in your organization, your proprietary information is vulnerable.
Protecting this sensitive enterprise information should be a top priority.
Signing a nondisclosure agreement (NDA) between you
and an external party can help. NDAs are documents
that prevent an outside party from releasing your organization’s data to other
outside sources without your permission.
Feel free to modify these to suit your organization’s needs. Also, it is a good idea to seek legal counsel before you create and sign an NDA with an external party.
Mutual nondisclosure agreement
Each undersigned party (the “RECEIVING PARTY”) understands that the other party (the “DISCLOSING PARTY”) has disclosed or may disclose information relating to
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or to the DISCLOSING PARTY’s business (including, without limitation, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics, and other technical, business, financial, customer, and product-development plans, forecasts, strategies, and information, which to the extent previously, presently, or subsequently disclosed to the RECEIVING PARTY is hereinafter referred to as the “PROPRIETARY INFORMATION” of the DISCLOSING PARTY.
Notwithstanding the foregoing, nothing will be considered “PROPRIETARY INFORMATION” of the DISCLOSING PARTY unless either (1) it is or was disclosed in tangible form and is conspicuously marked “Confidential,” “Proprietary,” or the like or (2) it is or was disclosed in nontangible form, identified as confidential at the time of disclosure, and summarized in tangible form conspicuously marked “Confidential,” “Proprietary,” or the like within 30 days of the original disclosure.
In consideration of the parties’ discussions and any access of the RECEIVING PARTY to PROPRIETARY INFORMATION of the DISCLOSING PARTY, the RECEIVING PARTY hereby agrees as follows:
1.
The RECEIVING PARTY agrees
(i) to
hold the DISCLOSING PARTY’s PROPRIETARY INFORMATION
in confidence and take reasonable precautions to protect such PROPRIETARY
INFORMATION (including, without limitation, all precautions the RECEIVING PARTY
employs with respect to its confidential materials)
(ii) not to divulge any such
PROPRIETARY INFORMATION or any information derived therefrom
to any third person
(iii) not to make any use whatsoever
at any time of such PROPRIETARY INFORMATION except to evaluate internally its
relationship with the DISCLOSING PARTY
(iv) not to copy or reverse-engineer
any such PROPRIETARY INFORMATION, and
(v) not to export or reexport (within the meaning of
2.
Without granting any right or license, the
DISCLOSING PARTY agrees that the foregoing shall not apply with respect to any
information after five years following the disclosure thereof or any
information that the RECEIVING PARTY can document
(i) is or
becomes (through no improper action or inaction by the RECEIVING PARTY or any
affiliate, agent, consultant or employee) generally available to the public, or
(ii) was in its possession or known
by it without restriction prior to receipt from the DISCLOSING PARTY or
(iii) was rightfully disclosed to it
by a third party without restriction, or
(iv) was independently developed
without use of any PROPRIETARY INFORMATION of the DISCLOSING PARTY by employees
of the RECEIVING PARTY who have had no access to such information. The
RECEIVING PARTY may make disclosures required by law or court order provided
the RECEIVING PARTY uses diligent, reasonable efforts to limit disclosure and
to obtain confidential treatment or a protective order and has allowed the
DISCLOSING PARTY to participate in the proceeding.
3.
Immediately upon a request by the DISCLOSING
PARTY at any time, the RECEIVING PARTY will turn over to the DISCLOSING PARTY
all PROPRIETARY INFORMATION of the DISCLOSING PARTY and all documents or media
containing any such PROPRIETARY INFORMATION and any and all copies or extracts
thereof. The RECEIVING PARTY understands that nothing herein
(i)
requires the disclosure of any PROPRIETARY INFORMATION of the DISCLOSING PARTY
or
(ii) requires the DISCLOSING PARTY
to proceed with any transaction or relationship.
4. This agreement applies only to disclosures made before the first anniversary of this Agreement. The RECEIVING PARTY acknowledges and agrees that due to the unique nature of the DISCLOSING PARTY PROPRIETARY INFORMATION, there can by no adequate remedy at law for any breach of its obligations hereunder, which breach may result in irreparable harm to the DISCLOSING PARTY, and therefore, that upon any such breach or any threat thereof, the DISCLOSING PARTY shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid, or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement shall be governed by the law of insert state name without regard to the conflicts of law provisions thereof. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof. The prevailing party in any action to enforce this Agreement shall be entitled to costs and attorneys’ fees. No waiver or modification of the Agreement will be binding upon a party unless made in writing and signed by a duly authorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver.
5. The term of this Agreement will be one year from the latest date appearing below unless alternative terms are agreed to in writing by both parties.
<INSERT COMPANY NAME HERE> ___________________________________
COMPANY
__________________________________ ___________________________________
Signed Signed
__________________________________ ___________________________________
Printed Printed
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Title Title
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Date Date