THIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is effective as of , by and between , and Apriorit LLC (“Developer”).
and Developer may herein be referred to individually as a “Party” or collectively as “Parties.”
and Developer have each developed certain Confidential Information (as defined below), which each considers to be valuable and proprietary.
and Developer desire to disclose Confidential Information for the purpose of evaluating a possible business relationship between the Parties (the “Purpose”). Accordingly, both Parties agree as set forth below.
1. Discloser and Recipient: For purposes of this Agreement, “Discloser” means the Party disclosing Confidential Information hereunder, and “Recipient” means the Party receiving Confidential Information hereunder.
2. Representatives: Each Party’s primary representative for purposes of coordinating the receipt, control, and return of Confidential Information exchanged hereunder is:
3. Confidential Information: The Confidential Information disclosed hereunder is to be broadly defined and includes all information, whether written or oral, tangible or intangible, made available at any time prior to, on or after the Effective Date, of which the unauthorized disclosure could be detrimental to the interests of the Discloser. By example and without limitation, Confidential Information includes any and all information concerning the Discloser’s business, products, product specifications, product roadmap, design review materials, new product ideas, manufacturing, samples, schematics, prototypes, hardware, software, firmware, techniques, processes, formulas, patents and patent applications, trade secrets, innovations, inventions, discoveries, improvements, research or development, testing, quality control, data, know-how, formats, marketing plans, business plans, strategies, unpublished financial information, budgets, forecasts, customer and supplier identities, and information of and relating to third-parties. The conversations, disclosures and relationship between the Parties, including, but not limited to the existence of this Agreement, details of ongoing discussions and negotiations related to the Purpose, and any resulting or subsequent agreement or relationship between the Parties, shall be considered Confidential Information subject to the terms and conditions of this Agreement.
Confidential Information does not include information that:
(a) was in the public domain at the time it was disclosed to the Recipient, or thereafter passes into the public domain other than as a result of disclosure by the Recipient; or,
(b) was rightfully received by the Recipient from a third-party without that third-party’s breach of agreement or obligation of trust or confidentiality; or,
(c) is disclosed by the Recipient with the prior written approval of the Discloser; or,
(d) is proven by the Recipient to have been independently developed by or for the Recipient without reference to or use of Confidential Information of the Discloser; or,
(e) is required to be disclosed by the Recipient pursuant to applicable law, statute, regulation or valid court order; provided, however, that the Recipient first provides the Discloser prompt written notice of the request and a reasonable opportunity to object to such disclosure and to seek a protective order or other appropriate remedy, and that the Recipient disclose only such Confidential Information as specifically required and only to the extent compelled to do so.
4. Restrictions on Use of Confidential Information: Each Recipient:
(a) shall exercise the same degree of care, and no less than a reasonable degree of care, in protecting the Confidential Information of the Discloser as the Recipient uses in protecting and preserving its own proprietary information;
(b) shall use Confidential Information of the Discloser only for the limited Purpose contemplated by, and in conformance with, this Agreement;
(c) non any breach of this Agreement by its employees and attorneys.
5. Information Ownership: Confidential Information will remain the sole property of the Discloser. No license or other right, including a license under any patent, patent application, or other right of ownership, is granted by either Party to the other by this Agreement.
6. Return of Confidential Information: Upon the written request of the Discloser, the Recipient shall promptly deliver to the Discloser all tangible Confidential Information furnished to the Recipient and return or destroy, at the Recipient’s election, all non-tangible Confidential Information furnished to the Recipient, including, but not limited to, all copies, reproductions, summaries, analyses or extracts of the Discloser’s Confidential Information, in the Recipient’s possession. Any destruction required by this Section 6 shall be promptly certified in writing by a duly authorized representative of the Recipient.
7. Liabilities: ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS” BASIS AND THE DISCLOSER HEREBY EXCLUDES ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WITH RESPECT TO ACCURACY, SUFFICIENCY, SUITABILITY OR NON-INFRINGEMENT OF CONFIDENTIAL INFORMATION. THE DISCLOSER SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGES, LOSSES OR EXPENSES INCURRED BY THE RECIPIENT AS A RESULT OF THE RECIPIENT’S RECEIPT OR USE OF CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS DESCRIBED IN THIS SECTION 7 AND THE ALLOCATION OF RISKS AND BENEFITS UNDER THIS AGREEMENT ARE A FUNDAMENTAL PART OF THIS AGREEMENT.
8. Term; Survival: This Agreement shall be effective as of the Effective Date and shall continue in full force for a period of three (3) years thereafter, unless earlier terminated or extended by written agreement of the Parties; provided, however that nothing herein is intended to limit or abridge the protection of trade secrets under applicable
trade secrets law, and trade secrets shall be maintained as such until they fall into the public domain through no fault of the Recipient.
9. Relationship of Parties: Nothing contained in this Agreement will be construed as creating a joint venture or partnership between the Parties. At all times, the Parties will remain independent contractors with respect to this Agreement. Further, nothing contained in this Agreement will (i) prevent or restrict either Party from developing information internally, or receiving information from other parties, that is similar to the Confidential Information, or (ii) prevent or restrict either Party from developing products, concepts, systems or techniques that are similar to, or compete with, products, concepts, systems, or techniques contemplated by or embodied in the Confidential Information; provided, however that such activities are done without the Party’s breach of the terms and conditions of this Agreement. Furthermore, the Parties acknowledge and agree that the exchange of Confidential Information under this Agreement shall not commit or bind either Party to any present or future contractual relationship (except as specifically stated herein), nor shall the exchange of Confidential Information be construed as an inducement to act or not to act in any given manner.
10. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws rules. The Parties agree to submit any claims or disputes arising under and in connection with this Agreement to binding arbitration, and such arbitration shall be under the rules of the American Arbitration Association.
11. Non-compete, non-solicitation, and non-disparagement. The Parties agree that at no time during the term of this Agreement and 2 (two) years from the termination of this Agreement, it will compete with the Party’s Business activity using the Other party’s Intellectual Property and Confidential Information. It is understood between the Parties that they may engage with other entities for business that may be independent of the Confidential Information provided under this Agreement and that, that may not be deemed as a breach of a Non-Compete restriction.
The Parties agree not to hire, solicit, nor attempt to solicit for itself or any third party, directly or indirectly, the services, of any director, officer, employee or subcontractor of the other Party, its parent or affiliate entities, who is associated with the execution of the project.
(a) This Agreement is the complete agreement between the Parties regarding matters discussed herein and supersedes any prior agreements, understandings, or representations with respect thereto and any amendment to this Agreement will be in writing and signed by the Parties.
(b) If any provision of this Agreement, or the application of such provision, is held to be invalid or unenforceable under any applicable statute or rule of law, the remaining provisions of this Agreement shall remain in full force and effect.
(c) This Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, legal representatives, successors of all or substantially all of a Party’s business and assets, and successors in interest. This Agreement may not be assigned, in whole or in part, by either Party without the prior written consent of the other Party.
(d) Failure by either Party to enforce any provision, in whole or in part, of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
(e) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned, being duly authorized representatives of their respective companies, have executed this Mutual Non-Disclosure Agreement as of the dates written below.
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