Non-Disclosure Agreement (Mutual NDA)

MUTUAL NON-DISCLOSURE AGREEMENT

Party A, its parents, subsidiaries, and/or affiliates (collectively “Party A”) and Party B, its parents, subsidiaries, and/or affiliates (collectively “Party B”) hereby enter into this Mutual Non-Disclosure Agreement (“Agreement”) as of ___________ ( “Effective Date”) and agree as follows:

1.    The parties are exploring a potential business relationship (“Purpose”) and, in the course of such discussions, each party may disclose to the other information which the disclosing party (“Discloser”) desires the receiving party (“Recipient”) to treat as confidential.

2.    “Confidential Information” means all technical and non-technical information disclosed by the Discloser to the Recipient (including, but not limited, to business development, sales, product information, product plans, pricing information, financials, pro formas, marketing strategies and plans, business strategies, customer information, data, research and development, software and hardware, programming code, documents, emails, APIs, specifications, brochures, databases, designs, proprietary formulae and algorithms); provided Confidential Information means any information disclosed in connection with the Purpose by a Discloser to a Recipient, either directly or indirectly, in writing, orally or by inspection of tangible objects, that may or may not be designated as “Confidential,” “Proprietary,” or some similar designation.

3.    The Recipient will: (a) hold the Confidential Information in confidence; (b) restrict disclosure of such Confidential Information to those of its employees, representatives, affiliates’ employees, and agents with a need-to-know and solely for the Purpose and who have previously agreed (e.g., as a condition to their employment or agency) to be bound by substantially similar terms as those contained in this Agreement; and (c) use the Confidential Information solely for the Purpose. The Recipient agrees that any Confidential Information shall be handled with at least the same degree of care which it applies to its own confidential information, but in no event, less than a commercially reasonable degree of care. Each party acknowledges and agrees that the Discloser’s Confidential Information shall remain the Discloser’s property.

4.    The restrictions in Section 3 will not apply to Confidential Information to the extent it: (a) was publicly known at the time of disclosure or became publicly available after disclosure to the Recipient without breach of this Agreement; (b) was independently developed by the Recipient without access to or use of the Confidential Information of the Discloser, as can be proven beyond a reasonable doubt by competent evidence in the Recipient’s possession; (c) was known to the Recipient, its employees, affiliate’s employees or agents prior to its receipt from the Discloser, as can be proven beyond a reasonable doubt by documents and other competent evidence in the Recipient’s possession; or (d) was lawfully received by the Recipient from a third party without restriction. The Recipient may disclose Confidential Information pursuant to any statutory or regulatory authority or court order, provided that: (i) the Recipient gives the Discloser prior written notice of such requirement, (ii) the scope of such disclosure is limited to that which is legally required, and (iii) the Recipient reasonably cooperates with the Discloser, at the Discloser’s expense, in the Discloser’s efforts to ensure that the Confidential Information will be subject to a protective order or other legally-available means of protection.

5.    Upon written request of the Discloser, all copies of Confidential Information in the possession of the Recipient, its employees, affiliate’s employees or agents will be returned to the Discloser or promptly destroyed with a written statement of compliance by a duly authorized officer and/or person authorized to make such a statement. No other use of Confidential Information is permitted, except as stated in this Agreement.

6.    Neither party is required to disclose any particular information to the other. Any disclosure pursuant to this Agreement is entirely voluntary and does not, in itself: (a) constitute a license or transfer of ownership under any intellectual property rights of the Discloser’s Confidential Information; (b) constitute solicitation of any business or the incurring of any obligation not specified herein; (c) create a relationship or commitment as to any product, service, or prospective business association; or (d) create warranties or representations of any kind.

7.    NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF ITS CONFIDENTIAL INFORMATION. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”.

8.    This Agreement may be terminated by either party at any time upon prior written notice.

9.    This Agreement supersedes all prior written and oral agreements between the parties regarding the Confidential Information and cannot be assigned, amended or modified except by the written agreement of the parties. No delay or failure in enforcing any provisions of this Agreement shall constitute a waiver thereof or of any other provision. In the event that any portion of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in full force and effect. This Agreement shall be governed by and construed using the laws of the state of ____________________ [state], without giving effect to its conflict of law provisions, choice of law principles or to constructive presumptions favoring either party. All actions arising out of or relating to this Agreement will be heard and determined exclusively by the state or federal courts located in _______________________________ [city, state], and each party waives all objections to the exercise of personal jurisdiction in such courts, and agrees to waive any argument or assertion challenging venue or inconvenient forum. Recipient agrees that in the event of breach of this Agreement, monetary damages may be inadequate and insufficient to compensate Discloser for any breach and that, in addition to other remedies that may exist at law or in equity or under this Agreement, the Discloser may seek injunctive relief and/or specific performance. This Agreement is written in the English language only; which language shall be controlling in all respects.

10.    A notice or other communication under this Agreement shall be deemed to have been received if made by email to the email address below, and such email is immediately followed up and accompanied by concurrent written notice sent Certified U.S. First-Class Mail, postage prepaid, to the physical address provided below along with a copy to its General Counsel. Either party may update such email addresses and physical addresses as necessary using the notice procedures described herein. Notice by any other means will be deemed made when actually received by the party to which notice is provided.

11.    This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall comprise a single instrument. A signature by facsimile or a .pdf file via email shall be deemed an original.

12.    A Recipient’s obligations under Section 3 with respect to any Confidential Information disclosed during the term of this Agreement will survive for a period of five (5) years following the date of each such disclosure. In addition, Sections 3, 4, 5, 7, 8 and 9 will survive the termination of this Agreement.

IN WITNESS WHEREOF, the parties, by their duly authorized representatives, hereby execute and deliver this Agreement as of the Effective Date.