• MM slash DD slash YYYY
  • THIS NONDISCLOSURE AGREEMENT (this "Agreement") is made as of the date show above, by and between (Filled out by seller)  ____________________ , ______________________________________ (the "Company"), and the person named at the top of this form [name of Potential Buyer] ("Potential Buyer").  Each of the Company and the Potential Buyer are a "Party" and collectively referred to herein as the "Parties".   R E C I T A L S  
    1. The Company and the Potential Buyer are engaged in discussions in contemplation of a potential business relationship (the "Transaction").
    2. In the course of dealings between the Company and the Potential Buyer, both Parties may have already and will continue to provide access to and disclosure of information that is Confidential Information as that phrase is later defined in this Agreement.
    3. The Parties desire to establish and set forth their respective rights, duties and responsibilities with respect to the Confidential Information.
    AGREEMENT   In consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Potential Buyer mutually agree as follows:  
    1. Definition. "Confidential Information" as used in this Agreement shall mean any and all non-public, confidential or proprietary information or data, regardless of form or medium, that is disclosed by or on behalf of a Party (the "DISCLOSER") or any of its directors, officers, employees, Affiliates (defined below), agents and advisors (such directors, officers, employees, Affiliates, agents and advisors are herein collectively referred to as the "Representatives"), to the other Party (the "RECIPIENT") whether before or after the date of this Agreement, as well as information and data generated by the RECIPIENT or any of its Representatives that contains, reflects or is derived from the furnished non-public, confidential or proprietary information or data, including, without limitation, (i) technical and non-technical information, including trademarks, copyrights, trade secrets, proprietary information, methods, ideas, concepts, techniques, formulas, patterns, sketches, drawings, models, designs, inventions, know-how, processes, software programs, software source documents, and formulae related to the current, future and proposed products and services, business operations, financial condition, business plans, results of operations, research and development and other proprietary information of the DISCLOSER; (ii) research, market studies, market surveys, market analyses, development, design details, design specifications and engineering, financial statements, financial forecasts, other financial information, plans (whether business, strategic, marketing or otherwise), client and customer lists, prospective client and customer lists, sales data, preferred vendor lists, sales analyses, prices, costs, pricing methods, personnel, proprietary plans, third-party information, business forecasts and marketing plans and information; (iii) the fact the parties are or may enter into discussions for the possible sale of the Company (iv) terms of any letter of intent and (v) all manuals, systems, documentation, reports, correspondence, memoranda or other materials related to any of the items listed in (i), (ii) (iii) or (iv) of this Section, in all cases whether or not marked "Confidential" or "Proprietary".
     
    1. Confidentiality. The RECIPIENT agrees that it will hold in confidence and not disclose or make use of, or in any way disseminate within its organization or to any person, firm or entity, any Confidential Information, or the fact that any Confidential Information has been made available to the RECIPIENT or that the RECIPIENT has inspected any portion of the Confidential Information, except in the conduct of discussions with either Party’s Representatives in the Transaction(s) or with regulatory agencies whose approval or consent is required for the Transaction(s), or necessary for negotiations, discussions and consultations related to the Transaction(s) (subject to the immediately following sentence), and except for any disclosure which the DISCLOSER may hereafter expressly authorize in writing. The RECIPIENT agrees that it shall disclose Confidential Information only to those Representatives who need to know such information to assist in evaluation of the Transaction(s), and who are under a legal duty of confidentiality as if a Party hereto, or have executed an agreement substantially on the terms set out herein directly obligating themselves in respect of all Confidential Information theretofore or thereafter disclosed to them by or on behalf of the DISCLOSER.  In any event, the RECIPIENT shall be fully liable for any disclosure by any of its Representatives of any Confidential Information, and any other material breach of this Agreement (including, without limitation, any of the obligations contained in this Section 2) by any such Representative. The RECIPIENT agrees that it shall, and shall cause its Representatives to, treat all Confidential Information with the same degree of care as it accords to its own Confidential Information, but in no event less than adequate means, and the RECIPIENT represents that it exercises reasonable care to protect its own Confidential Information. In accepting Confidential Information, the RECIPIENT acknowledges that the DISCLOSER makes no implied or expressed representation or warranty as to the accuracy or completeness of any furnished information, confidential or otherwise, and that any representation or warranty will be made only in applicable definitive written agreements setting forth the terms of and contemplating the Transaction(s) that are consummated.  RECIPIENT agrees to immediately notify the DISCLOSER in writing of any misuse or misappropriation of Confidential Information of the DISCLOSER which may come to RECIPIENT’s attention.  Neither Party shall communicate any information to the other in violation of the proprietary rights of any third Party. Each Party agrees that, except as required by law or without the prior written consent of the other Party (which it may withhold in its sole and absolute discretion), neither it nor any of its Representatives shall publish a press release or otherwise publicly disclose the fact that any Confidential Information has been made available by the DISCLOSER, that discussions or negotiations are taking place involving the Parties or any of the terms, conditions or facts with respect to the Transaction.
     
    1. Exclusions from Confidential Information and Termination of Obligations. The terms and conditions of this Agreement shall survive the termination of this Agreement and the Transaction and any discussions regarding the Transaction between RECIPIENT and the DISCLOSER, and shall remain in effect for a period of three (3) years following execution of this Agreement.  Notwithstanding the preceding sentence, RECIPIENT shall be required to keep the DISCLOSER’s Confidential Information confidential (as provided in Section 2) until such time, if ever, as the RECIPIENT can document that:
      • The Confidential Information was known by Recipient at the time disclosed by Discloser, or was reasonably inferable from information in the possession of Recipient at such time without reference to Discloser’s Confidential Information;
      • Such portion of the Confidential Information is, or was, in the public domain at the same time it was communicated to the RECIPIENT or its Representative by or on behalf of the DISCLOSER;
      • Such portion of the Confidential Information entered the public domain subsequent to the time it was communicated to RECIPIENT or its Representative by or on behalf of DISCLOSER through no act or omission (including, but not limited to negligence) of RECIPIENT or any of its Representatives; or
      • Such portion of the Confidential Information was communicated as required by a valid order by a court or other governmental body or, as otherwise required by law; provided, however, that if RECIPIENT is required to disclose any Confidential Information in such circumstances, RECIPIENT will cooperate with DISCLOSER and provide DISCLOSER with prompt and adequate notice of such request so that DISCLOSER may, at its discretion, seek an appropriate protective order, injunctive relief and/or waive compliance with the provisions of the Agreement. In the absence of any such order, relief or waiver, RECIPIENT shall only disclose that Confidential Information which it is advised in writing by its legal counsel is legally required to be disclosed, and RECIPIENT will exercise all reasonable efforts to obtain assurance that confidential treatment, if available, will be accorded such Confidential Information.
    For the avoidance of doubt, the RECIPIENT acknowledges that any exclusion or termination of the obligations under Section 2 with respect to any Confidential Information described under clauses (a), (b), (c) or (d) above shall only be with respect to such Confidential Information. The requirements of this Section 3 shall survive the termination of this Agreement and/or the abandonment of the Transaction.
    1. Ownership of Confidential Information; Return or Destruction of Materials. RECIPIENT agrees that, as between RECIPIENT and DISCLOSER, the Confidential Information is and will remain the property of DISCLOSER. At any time upon the written request of DISCLOSER, RECIPIENT shall immediately return to DISCLOSER or destroy (at the option of DISCLOSER), and shall cause RECIPIENT’s Representatives to immediately return to DISCLOSER or destroy (at the option of DISCLOSER), all Confidential Information and any derivative or residual work thereof expressed in whole or in part in any tangible form or media (including, without limitation, information incorporated in computer software or held in electronic storage media), without retaining a copy or copies thereof and without retaining any memoranda, notes, records or other documents or materials (or any copies of same) pertaining to or including any Confidential Information, together with written certification of the destruction or return of all such Confidential Information. Notwithstanding this Section 4, RECIPIENT shall be permitted to retain Confidential Information (1) in accordance with its internal record retention policies and procedures for regulatory compliance purposes or (2) to the extent saved electronically as part of computer archiving or back-up recovery systems, provided that all such retained information shall remain subject to the confidentiality terms of this Agreement.
    2. Indemnity. RECIPIENT shall indemnify and hold DISCLOSER and its Affiliates, and their respective directors, officers, employees, equity holders, partners, managers, agents, successors and assigns harmless, from and against, and shall pay, all claims, damages, losses, liabilities, costs or expenses, including without limitation reasonable attorneys' fees, costs, expenses, settlement amounts and disbursements, incurred in investigating, preparing or defending any demand, suit, investigation, action or proceeding as and when incurred by DISCLOSER and its Affiliates, and their respective directors, officers, employees, equity holders, partners, managers, agents, successors and assigns, which are determined by arbitration pursuant to Section 13 of this Agreement to be, directly or indirectly, caused by, related to, based upon, or made in connection with, any material breach or threatened material breach of any provision of this Agreement by RECIPIENT or any of its Representatives. In addition to any and all remedies available to the DISCLOSER respecting a material breach hereof, RECIPIENT agrees, at its own expense, to take all reasonable measures including, but not limited to, court proceedings to restrain any person to whom RECIPIENT has disclosed Confidential Information from using or disclosing Confidential Information in any manner contrary to this Agreement. The requirements of this Section 5 shall survive the termination of this Agreement and/or the abandonment of the Transaction.
    3. Prohibited Contacts. Each Party agrees that it will not, directly or indirectly, contact any customer, client, employee, consultant, agent, vendor, lender, familial or other business relation of the other Party or discuss with Parties not bound by this Agreement or not previously and expressly authorized in writing by the non-disclosing Party that any potential Transaction is being contemplated by the Company and the Potential Buyer or any confidential details of a contemplated transaction between the Company and the Potential Buyer without the express prior written consent of the non-disclosing Party.  RECIPIENT will not (i) approach directly or indirectly, through its Affiliates or otherwise, or (ii) be involved in any businesses, ventures, deals or transactions, with the DISCLOSER’s associates, customers, suppliers, clients or Affiliates in general or in particular, to whom RECIPIENT learned about as a result of the Confidential Information disclosed by the DISCLOSER without the express prior written consent of the DISCLOSER.
    4. Purpose of Disclosure. RECIPIENT acknowledges that DISCLOSER is providing the Confidential Information solely for the purpose of enabling RECIPIENT to determine its interest in consummating the Transaction.  RECIPIENT agrees to use, review, examine, inspect, and obtain such information only for such Purpose, and to otherwise hold such information in accordance with the provisions of this Agreement.  In the event of any material breach or threatened material breach by RECIPIENT of the provisions of this Agreement, DISCLOSER shall be entitled to an injunction, without posting a bond or other security, restraining RECIPIENT from engaging in or performing acts or activities in contravention of the provisions of this Section 7 in addition to and not in lieu of any other remedies available at law or hereunder to DISCLOSER for such material breach or threatened material breach.
    5. Additional Definitions. For purposes hereof the term "Affiliate" shall mean with respect to any Person (as hereinafter defined), (i) any Person directly or indirectly controlling, controlled by or under common control with such Person, (ii) any Person owning or controlling 5% or more of the outstanding voting interests of such Person, (iii) any officer, director, or general partner of such Person, or (iv) any Person who is an officer, director, general partner, trustee, or holder of 5% or more of the voting interests of any Person described in clauses (i) through (iii) of this sentence.  For purposes of this definition, the term "controls", "is controlled by", or "is under common control with" shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise.  The term "Person" for purposes hereof means any individual, partnership, corporation, limited liability company, trust or other entity.
    6. Acknowledgment. Each Party acknowledges that it has had the opportunity to read and discuss this Agreement with its advisors and understands this Agreement and its importance. Both Parties also acknowledge that neither Party would disclose the Confidential Information to the other Party without this Agreement. Each Party represents and warrants to the other Party that it has all necessary power and authority to enter into and perform this Agreement in accordance with the terms hereof.
     
    1. Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be made by hand delivery, first-class mail (registered or certified, return receipt requested), e-mail, or overnight air courier guaranteeing next day delivery, addressed as follows: (a) if to the Company, at
      (Filled out by seller)
      ________________________________

      ________________________________

      ________________________________,

      and (B) if to the Potential Buyer, at the address and to the individual signing in the signature block below, or to such other address as the Party receiving such notice shall have properly designated to the other Party hereto in writing.  Each such notice shall be deemed given at the time delivered by hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied or sent via electronic means, including email; and the next business day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
    2. Severability and Savings Clause. If any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect the validity and enforceability of any other provisions of this Agreement, and it is the intention of the Parties that there shall be substituted for such invalid, illegal or unenforceable provision a provision as similar in intent and economic effect to such provision as may be possible and yet be valid, legal and enforceable.
    3. Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws of the State of Washington without regard to conflict of law provisions.
    4. Remedies. RECIPIENT agrees that a material breach or threatened material breach, based on reasonable and good faith evidence of a material breach or threatened material breach by it, of Section 2 or any other material covenant contained in this Agreement will cause irreparable damage to the DISCLOSER.  For that reason RECIPIENT further agrees that DISCLOSER is entitled as a matter of right to an injunction, without posting a bond or other security, from any court of competent jurisdiction, restraining any violation of any of such covenants by RECIPIENT, its Representatives or any person or entity related, directly or indirectly, to RECIPIENT without the necessity of proving actual damages.  The right to an injunction is in addition to whatever remedies DISCLOSER may have at law or hereunder, including specifically, without limitation, the recovery of money damages.
    5. No Obligation Regarding Transaction. Each Party acknowledges and agrees that (a) each Party and its respective Representatives are free to conduct the process leading up to a possible Transaction as each Party and its respective Representatives, in their sole discretion, determines (including, without limitation, by negotiating with any other person or entity and entering into a preliminary or definitive agreement without prior notice to the other Party or any other person), (b) each Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to the other Party or any other person, to reject any and all proposals made by the other Party or any of its Representatives with regard to the Transaction, and to terminate discussions and negotiations with the other Party at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed, neither Party nor any of its Representatives will have any liability to the other Party with respect to the Transaction (other than liability for breach of this Agreement), whether by virtue of this Agreement, any other written or oral expression with respect to the Transaction or otherwise.
    6. Attorneys’ Fees and Costs. If any arbitration or any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which it may be entitled.
    7. Waiver. No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege. Waivers are not effective unless in writing and signed by the Party granting the waiver.
    8. Successors and Assigns. This Agreement and the rights and obligations under this Agreement will be binding upon and inure to the benefit of the Parties to this Agreement and their respective legal representatives, and permitted assigns, and will also bind and inure to the benefit of any successor of any Party by merger or consolidation or any assignee of all or substantially all of any Party’s assets.
    9. Effect of Facsimile and Photocopied Signatures. This Agreement may be executed in several counterparts, each of which is an original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other counterparts.  A copy of this Agreement signed by one Party and faxed to another Party or scanned and emailed by one Party to another shall be deemed to have been executed and delivered by the signing Party as though an original.  A photocopy or a PDF of this Agreement shall be effective as an original for all purposes.
    10. Headings. The headings of this Agreement are for convenience only and do not constitute a part of this Agreement.
    11. Entire Agreement; Amendment. This Agreement is the complete and exclusive statement of the agreement among the Parties and supersedes any and all other agreements, either oral or in writing, between or among the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between or among the Parties with respect thereto. This Agreement shall govern all communications between or among the Parties that are made during the period from the effective date of this Agreement to the date on which either Party receives from the other written notice that subsequent communications shall not be so governed or, if earlier, the date on which the obligations of the Parties hereto are superseded by obligations set forth in the definitive written agreement(s) setting forth the terms of the Transaction(s). This Agreement can only be amended or modified by the Parties in writing, executed by the Party or Parties against whom enforcement of any amendments or modifications may be sought.
    IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the date first written above.  
    (Filled out by seller)
    Company: "_______________________________________________________________"
    (Filled out by seller)
    By: "_______________________________________________________________"
    (Filled out by seller)
    Title: "_______________________________________________________________"                                                             
     

  • "Potential Buyer"

    You acknowledge that you have read the above Non-Disclosure Agreement carefully, fully understand it, and agree to comply with it. You also attest that the name and information provided above are your own, and it is accurate.
  • Please sign here. You can use a mouse. You can use your finger if you have a touch screen device.