This Confidentiality Agreement (hereinafter
referred to as the "Agreement") is made and effective the __
day of ______, 199_ by and between ________________ (hereinafter referred
to as the "Owner") and ______________________ (hereinafter referred
to as the "Recipient").
1. Confidential Information.
Owner proposes to disclose certain of its confidential and proprietary
information (the "Confidential Information") to Recipient. Confidential
Information shall include all data, materials, products, technology, computer
programs, specifications, manuals, business plans, software, marketing
plans, business plans, financial information, and other information disclosed
or submitted, orally, in writing, or by any other media, to Recipient
by Owner. Confidential Information disclosed orally shall be identified
as such within five (5) days of disclosure. Nothing herein shall require
Owner to disclose any of its information.
2. Recipient's Obligations.
A. Recipient agrees that the Confidential
Information is to be considered confidential and proprietary to Owner
and Recipient shall hold the same in confidence, shall not use the Confidential
Information other than for the purposes of its business with Owner,
and shall disclose it only to its officers, directors, or employees
with a specific need to know. Recipient will not disclose, publish or
otherwise reveal any of the Confidential Information received from Owner
to any other party whatsoever except with the specific prior written
authorization of Owner.
B. Confidential Information furnished in
tangible form shall not be duplicated by Recipient except for purposes
of this Agreement. Upon the request of Owner, Recipient shall return
all Confidential Information received in written or tangible form, including
copies, or reproductions or other media containing such Confidential
Information, within ten (10) days of such request. At Recipient's option,
any documents or other media developed by the Recipient containing Confidential
Information may be destroyed by Recipient. Recipient shall provide a
written certificate to Owner regarding destruction within ten (10) days
The obligations of Recipient herein shall be effective [Non-Disclosure
Period] from the date Owner last discloses any Confidential Information
to Recipient pursuant to this Agreement. Further, the obligation not to
disclose shall not be affected by bankruptcy, receivership, assignment,
attachment or seizure procedures, whether initiated by or against Recipient,
nor by the rejection of any agreement between Owner and Recipient, by
a trustee of Recipient in bankruptcy, or by the Recipient as a debtor-in-possession
or the equivalent of any of the foregoing under local law
4. Other Information.
Recipient shall have no obligation under this Agreement with respect to
Confidential Information which is or becomes publicly available without
breach of this Agreement by Recipient; is rightfully received by Recipient
without obligations of confidentiality; or is developed by Recipient without
breach of this Agreement; provided, however, such Confidential Information
shall not be disclosed until thirty (30) days after written notice of
intent to disclose is given to Owner along with the asserted grounds for
5. No License.
Nothing contained herein shall be construed as granting or conferring
any rights by license or otherwise in any Confidential Information. It
is understood and agreed that neither party solicits any change in the
organization, business practice, service or products of the other party,
and that the disclosure of Confidential Information shall not be construed
as evidencing any intent by a party to purchase any products or services
of the other party nor as an encouragement to expend funds in development
or research efforts. Confidential Information may pertain to prospective
or unannounced products. Recipient agrees not to use any Confidential
Information as a basis upon which to develop or have a third party develop
a competing or similar product.
6. No Publicity.
Recipient agrees not to disclose its participation in this undertaking,
the existence or terms and conditions of the Agreement, or the fact that
discussions are being held with Owner.
7. Governing Law and Equitable Relief.
This Agreement shall be governed and construed in accordance with the
laws of the United States and the State of [State of Governing Law] and
Recipient consents to the exclusive jurisdiction of the state courts and
U.S. federal courts located there for any dispute arising out of this
Agreement. Recipient agrees that in the event of any breach or threatened
breach by Recipient, Owner may obtain, in addition to any other legal
remedies which may be available, such equitable relief as may be necessary
to protect Owner against any such breach or threatened breach.
8. Final Agreement.
This Agreement terminates and supersedes all prior understandings or agreements
on the subject matter hereof. This Agreement may be modified only by a
further writing that is duly executed by both parties.
9. No Assignment.
Recipient may not assign this Agreement or any interest herein without
Owner's express prior written consent.
If any term of this Agreement is held by a court of competent jurisdiction
to be invalid or unenforceable, then this Agreement, including all of
the remaining terms, will remain in full force and effect as if such invalid
or unenforceable term had never been included.
Any notice required by this Agreement or given in connection with it,
shall be in writing and shall be given to the appropriate party by personal
delivery or by certified mail, postage prepaid, or recognized overnight
If to Owner:
If to Recipient:
12. No Implied Waiver.
Either party's failure to insist in any one or more instances upon strict
performance by the other party of any of the terms of this Agreement shall
not be construed as a waiver of any continuing or subsequent failure to
perform or delay in performance of any term hereof.
Headings used in this Agreement are provided for convenience only and
shall not be used to construe meaning or intent.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first above written.
[Owner] Signature Block
[Recipient] Signature Block