Non-Disclosure Agreement - Mutual

MUTUAL NON-DISCLOSURE AGREEMENT

(“Agreement”)

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Operative Provisions
4. Representations & Warranties
5. Covenants & Restrictions
6. Default & Remedies
7. Risk Allocation
8. Dispute Resolution
9. General Provisions
10. Execution Block

1. DOCUMENT HEADER

1.1 Parties. This Mutual Non-Disclosure Agreement (the “Agreement”) is entered into as of [Effective Date] (the “Effective Date”) by and between:

(a) [Full Legal Name of Party A], a [Jurisdiction & Entity Type], having a principal place of business at [Address] (“Party A”); and
(b) [Full Legal Name of Party B], a [Jurisdiction & Entity Type], having a principal place of business at [Address] (“Party B”, and together with Party A, each a “Party” and collectively, the “Parties”).

1.2 Recitals.
WHEREAS, each Party possesses certain proprietary or confidential information and desires to disclose such information to the other Party solely for the purpose of [describe transaction/project] (the “Permitted Purpose”); and
WHEREAS, the Parties wish to protect the confidentiality of such information in accordance with the terms set forth herein and in consideration of the mutual promises contained herein;

NOW, THEREFORE, the Parties agree as follows:

Jurisdiction and relationship review required: Confidentiality, trade-secret, whistleblower, employment, invention-assignment, forum, jury-waiver, and remedies rules vary. Counsel should complete Sections 8.1 and 8.3 and determine whether either Party or any signatory is acting as an employee, contractor, or consultant before use.

2. DEFINITIONS

For purposes of this Agreement, capitalized terms have the meanings set out below:

“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party.

“Confidential Information” means all non-public, proprietary, or confidential data or information disclosed by a Disclosing Party to a Receiving Party, in any form, whether oral, written, electronic, visual, or otherwise, that is identified as confidential or that a reasonable person should understand to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes Trade Secrets.

“Disclosing Party” means the Party (or its Affiliate) disclosing Confidential Information.

“Receiving Party” means the Party (or its Affiliate) receiving Confidential Information.

“Representatives” means a Party’s and its Affiliates’ directors, officers, employees, agents, consultants, advisors, and potential financing sources who have a legitimate need to know the Confidential Information for the Permitted Purpose.

“Trade Secret” means information meeting the requirements of applicable trade-secret law, including, when federal law applies, 18 U.S.C. § 1839(3): information whose owner has taken reasonable measures to keep it secret and that derives actual or potential independent economic value from not being generally known and not being readily ascertainable through proper means by a person who could obtain economic value from its disclosure or use.

3. OPERATIVE PROVISIONS

3.1 Confidentiality Obligations. The Receiving Party shall:
(a) hold all Confidential Information in strict confidence using at least the degree of care it employs to protect its own information of similar sensitivity, and in no event less than a commercially reasonable degree of care;
(b) use the Confidential Information solely for the Permitted Purpose;
(c) restrict disclosure of Confidential Information only to its Representatives who need to know such information for the Permitted Purpose and who are bound by confidentiality obligations no less restrictive than those contained herein; and
(d) be liable for any breach of this Agreement by its Representatives.

3.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by contemporaneous written records:
(a) is or becomes publicly available through no breach of this Agreement;
(b) is received from a third party without breach of any confidentiality obligation;
(c) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or
(d) is approved in writing for release by the Disclosing Party.

3.3 Mandatory Disclosures. If the Receiving Party is compelled by law, regulation, or court order to disclose Confidential Information, it shall, to the extent legally permissible, provide the Disclosing Party with prompt written notice to permit the Disclosing Party to seek a protective order or other appropriate remedy. The Receiving Party shall disclose only that portion of Confidential Information legally required and shall use reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.

3.4 Protected Disclosures; DTSA Notice. Nothing in this Agreement prohibits or restricts an individual from communicating with a government, regulator, law-enforcement agency, or attorney about a suspected violation of law; participating in an investigation or proceeding; communicating directly with SEC staff as protected by 17 C.F.R. § 240.21F-17; engaging in concerted activity protected by 29 U.S.C. § 157, including discussing wages, hours, or working conditions, where that law applies; making a disclosure protected by other law; or discussing or disclosing conduct in a sexual-assault or sexual-harassment dispute to the extent a predispute nondisclosure clause is unenforceable under 42 U.S.C. § 19403 or more protective law. No prior authorization or notice to the other Party is required where applicable law protects the communication. Under 18 U.S.C. § 1833(b), an individual is immune from federal and state trade-secret liability for a trade-secret disclosure made (a) in confidence to a federal, state, or local government official, directly or indirectly, or to an attorney, solely to report or investigate a suspected violation of law; or (b) in a complaint or other document filed under seal. An individual suing for retaliation may disclose the trade secret to the individual’s attorney and use it in the proceeding if documents containing the trade secret are filed under seal and disclosure occurs only as the court permits. This notice applies to employees and to individuals performing work as contractors or consultants.

3.5 Return or Destruction. Upon the earlier of (i) written request by the Disclosing Party or (ii) termination of this Agreement, the Receiving Party shall promptly return or destroy (at Disclosing Party’s election) all Confidential Information and all copies, summaries, and extracts thereof, except that the Receiving Party may retain one (1) archival copy for compliance purposes and any electronically stored Confidential Information created pursuant to routine backup procedures, provided such retained materials remain subject to this Agreement.

3.6 No License. All Confidential Information remains the property of the Disclosing Party. No license, express or implied, under any patent, copyright, trademark, Trade Secret, or other intellectual-property right is granted to the Receiving Party by this Agreement.

3.7 Term. The obligations of confidentiality and non-use contained herein shall commence on the Effective Date and, with respect to Confidential Information that does not qualify as a Trade Secret, survive for [three (3)] years after termination or expiration of this Agreement. Trade Secret obligations survive so long as the information remains a Trade Secret under applicable law.

4. REPRESENTATIONS & WARRANTIES

4.1 Authority. Each Party represents and warrants that:
(a) it has full corporate power and authority to execute, deliver, and perform this Agreement;
(b) its execution and performance of this Agreement will not violate any other agreement by which it is bound.

4.2 No Warranty as to Information. CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

4.3 Survival. The representations and warranties in Sections 4.1 and 4.2 shall survive the termination or expiration of this Agreement.

5. COVENANTS & RESTRICTIONS

5.1 Prohibited Actions. The Receiving Party shall not (and shall cause its Representatives not to):
(a) decompile, disassemble, reverse-engineer, or otherwise attempt to derive the composition or underlying information of any Trade Secret, except to the extent expressly permitted by applicable law notwithstanding a contractual prohibition;
(b) remove, obscure, or deface any confidentiality or proprietary notices.

5.2 Notice of Unauthorized Use. The Receiving Party shall immediately notify the Disclosing Party in writing upon discovery of any unauthorized use or disclosure of Confidential Information and shall cooperate with the Disclosing Party to regain possession of such information and prevent further unauthorized use.

5.3 Compliance with Law. Each Party shall comply with all applicable export control, data-privacy, and sanctions laws in connection with the receipt, storage, and use of Confidential Information.

6. DEFAULT & REMEDIES

6.1 Events of Default. Any breach of Sections 3 or 5 constitutes an “Event of Default.”

6.2 Cure Period. Upon written notice of an Event of Default, the defaulting Party shall have [five (5)] business days to cure, if the breach is capable of cure; provided, however, that unauthorized disclosure of Trade Secrets or other irreparable harm is deemed incapable of adequate cure.

6.3 Injunctive Relief. A breach or threatened breach may cause harm for which monetary relief is inadequate. The non-breaching Party may seek temporary, preliminary, or permanent injunctive relief and specific performance. Entitlement, proof of irreparable harm, security, and scope remain for the court or tribunal under applicable law, including Fed. R. Civ. P. 65 in federal court. Any federal trade-secret injunction must comply with 18 U.S.C. § 1836(b)(3)(A), including its limits on employment restraints.

6.4 Damages & Costs. Subject to Section 7.1 (no liability cap), the non-breaching Party may seek actual damages and, to the extent authorized by this Agreement and applicable law, reasonable attorneys’ fees and costs incurred in enforcing this Agreement.

7. RISK ALLOCATION

7.1 Limitation of Liability. NO LIABILITY CAP. The Parties expressly agree that NO limitation of liability applies; each Party remains liable to the other for all damages and remedies allowable under applicable law.

7.2 No Indemnification. The Parties agree that this Agreement does not create any indemnification obligations.

7.3 Force Majeure. Neither Party shall be liable for any failure or delay in performance (other than payment obligations, if any) to the extent caused by events beyond its reasonable control, including acts of God, natural disasters, war, terrorism, civil unrest, labor disputes, governmental action, or utility failures, provided the affected Party uses diligent efforts to resume performance.

8. DISPUTE RESOLUTION

8.1 Governing Law. This Agreement and all disputes arising out of or relating hereto shall be governed by and construed in accordance with the laws of the [Chosen State/Country], without regard to its conflict-of-laws principles.

8.2 Arbitration. Except for actions seeking injunctive relief under Section 6.3, any dispute, controversy, or claim arising out of or relating to this Agreement shall be finally settled by binding arbitration administered by [American Arbitration Association (“AAA”) / other institution] under its [Commercial Arbitration Rules] in effect at the time of filing. The arbitration shall be conducted by a single neutral arbitrator in [City, State]. Any confidentiality obligation for the proceeding or award must be stated in the selected rules or an enforceable order. Judgment on the award may be entered in any court having jurisdiction. If the transaction involves commerce, 9 U.S.C. § 2 governs enforceability of the written arbitration provision, subject to generally applicable contract defenses.

8.3 Exclusive Forum for Injunctive Relief. For purposes of obtaining injunctive relief under Section 6.3, each Party submits to the exclusive jurisdiction of the state courts located in [County, State] and, if federal subject-matter jurisdiction exists, the federal courts serving that location. Each Party waives objections to venue or forum non conveniens to the extent permitted by applicable law.

8.4 Jury Waiver. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.

9. GENERAL PROVISIONS

9.1 Amendment; Waiver. No amendment or modification of this Agreement is valid unless in writing and signed by authorized representatives of both Parties. No waiver of any breach is deemed a waiver of any other breach.

9.2 Assignment. Subject to applicable law, neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the prior written consent of the other Party, except that either Party may assign this Agreement without such consent to a successor in interest in connection with a merger, acquisition, or sale of substantially all of its assets; provided the assignee agrees in writing to be bound by this Agreement. Any prohibited assignment is ineffective to the extent permitted by applicable law.

9.3 Successors & Assigns. This Agreement binds and benefits the Parties and their respective permitted successors and assigns.

9.4 Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions remain in full force. The Parties request judicial modification only if governing law permits it; otherwise, the invalid or unenforceable provision shall be severed.

9.5 Integration. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements or understandings. Each Party acknowledges that it has not relied on any statement or promise not expressly contained herein.

9.6 Counterparts; Electronic Signatures. Subject to applicable electronic-transactions law and any required consent, this Agreement may be executed in counterparts, including by electronic-signature technology. Under 15 U.S.C. § 7001, a transaction in or affecting interstate or foreign commerce may not be denied legal effect solely because an electronic record or signature was used, but the statute does not require a person to accept electronic execution or displace other substantive legal requirements.

9.7 Notice. All notices must be in writing and delivered by personal delivery, nationally recognized overnight courier, certified mail (return receipt requested), or email (with confirmation of receipt), to the addresses set forth below (or as updated by written notice). Notice is effective (a) upon receipt if delivered personally, (b) one business day after deposit with an overnight courier, (c) three business days after deposit with the postal service, or (d) upon confirmed receipt of email (excluding automated responses).

10. EXECUTION BLOCK

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

Sources and References

• 18 U.S.C. § 1833 — Protected trade-secret disclosures and employer notice
• 18 U.S.C. § 1836 — Federal trade-secret remedies and injunction limits
• 18 U.S.C. § 1839 — Federal trade-secret definitions
• 17 C.F.R. § 240.21F-17 — Communications with SEC staff
• 29 U.S.C. § 157 — Covered employees' concerted-activity rights
• 29 U.S.C. § 158 — Unfair labor practices
• 42 U.S.C. § 19403 — Speak Out Act enforceability limit
• Federal Rules of Civil Procedure — current official rules (Rule 65)
• 9 U.S.C. § 2 — Written arbitration agreements
• 15 U.S.C. § 7001 — Electronic records and signatures

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