Mutual non-disclosure agreement template

Mutual non-disclosure agreement

This Mutual Non-Disclosure Agreement (the “Agreement”) is made as of [Effective date] (the “Effective Date”) between:

[Party A legal name], with its principal office at [Party A address] (“Party A”); and

[Party B legal name], with its principal office at [Party B address] (“Party B”).

Party A and Party B are each a “party”. A party disclosing information is the “Discloser” and a party receiving it is the “Recipient”.

Background

The parties wish to share information with each other for the purpose of [Purpose of disclosure] (the “Purpose”). Each party is willing to do so only if the other agrees to protect that information on the terms below.

1. Confidential Information

“Confidential Information” means all non-public information disclosed by or for the Discloser to the Recipient, or to which the Recipient gains access, in connection with the Purpose, whether before or after the Effective Date and in any form, including business plans, financial information, customer and supplier information, pricing, product plans, technical data, designs, source code, algorithms, know-how, trade secrets, personal information, and the fact and content of discussions between the parties. Information disclosed orally or visually is included if it would reasonably be understood to be confidential.

Confidential Information also includes notes, analyses, summaries and other materials prepared by the Recipient that contain or reflect it.

2. Exclusions

Confidential Information does not include information that the Recipient can show by written records: (a) is or becomes publicly available through no breach of this Agreement; (b) was lawfully known to the Recipient before disclosure without a duty of confidence; (c) is lawfully received from a third party who is not under a duty of confidence; or (d) is independently developed by the Recipient without using or referring to the Discloser's Confidential Information.

3. Obligations of the Recipient

The Recipient will: (a) use the Discloser's Confidential Information only for the Purpose; (b) keep it confidential and protect it with at least the degree of care it uses for its own confidential information of a similar nature, and never less than reasonable care; (c) not disclose it to anyone except as allowed by section 4; (d) not copy it except as reasonably needed for the Purpose; and (e) not reverse engineer, decompile or analyse the composition of any prototype, software or material provided, except as the Discloser authorizes in writing.

The Recipient will notify the Discloser promptly in writing if it becomes aware of any unauthorized use or disclosure, and will take reasonable steps to stop it and limit its effect.

4. Permitted disclosures

The Recipient may disclose Confidential Information to its and its affiliates' directors, officers, employees, contractors, professional advisors and potential financing sources (“Representatives”) who need to know it for the Purpose and who are bound by confidentiality obligations at least as protective as this Agreement. The Recipient is responsible for any breach of this Agreement by its Representatives.

The Recipient may disclose Confidential Information to the extent required by law, regulation, stock exchange rule or court order, if it gives the Discloser prompt written notice where legally permitted, cooperates reasonably with any effort to seek a protective order, and discloses only the part that is legally required.

Nothing in this Agreement prevents an individual from reporting possible violations of law to a government agency or making other disclosures protected by whistleblower law.

5. Personal information

If Confidential Information includes personal information, the Recipient will handle it only for the Purpose, protect it with safeguards appropriate to its sensitivity, and comply with applicable privacy laws, such as PIPEDA and provincial privacy laws in Canada and applicable US state laws. The Recipient will notify the Discloser without undue delay of any unauthorized access to that personal information.

6. No licence, no warranty, no obligation

All Confidential Information remains the property of the Discloser. Nothing in this Agreement grants the Recipient any licence or right in it, except the limited right to use it for the Purpose.

Confidential Information is provided “as is”. The Discloser makes no warranty about its accuracy or completeness, and is not liable for the Recipient's use of it, except as agreed in a later definitive agreement.

Neither party is obliged to disclose any particular information, to continue discussions, or to enter into any further agreement. Each party may pursue similar opportunities with others, as long as it does not use the other's Confidential Information to do so.

7. Return or destruction

Within [15] days after the Discloser's written request, or after the Purpose ends, the Recipient will return or securely destroy the Discloser's Confidential Information and confirm this in writing. The Recipient may keep copies that it must keep by law or professional rules, and copies in automatic electronic backups that are not readily accessible, as long as they remain protected by this Agreement.

8. Term

This Agreement covers disclosures made during the period from the Effective Date until [Number] months after the Effective Date, or until either party ends it by 30 days' written notice, if earlier. The Recipient's obligations for Confidential Information disclosed during that period last for [Confidentiality period] years after the end of that period, and for trade secrets for as long as they remain trade secrets under applicable law.

9. Remedies

Each party acknowledges that unauthorized use or disclosure of the other's Confidential Information could cause harm for which money damages would not be an adequate remedy. The Discloser is entitled to seek injunctive relief and specific performance, in addition to any other remedy available at law or in equity, without proving actual damages and, where the law allows, without posting a bond.

10. No publicity and no solicitation

Neither party will publicly announce or disclose the existence or content of discussions about the Purpose without the other's prior written consent.

[For [12] months after the Effective Date, neither party will directly solicit for employment any employee of the other party with whom it had contact in connection with the Purpose, except through general advertisements not targeted at those employees.]

11. Governing law and disputes

This Agreement is governed by the laws of [Province or state] and the federal laws of [Country] that apply there, without regard to conflict-of-laws rules that would apply the law of another place.

If a dispute arises, the parties will first try in good faith to resolve it by discussion between people with authority to settle it, for at least 30 days after one of them gives written notice describing the dispute. If the dispute is not resolved in that time, either of them may start proceedings in the courts located in [City, Province or state], and each submits to the non-exclusive jurisdiction of those courts.

Nothing in this section prevents anyone from seeking urgent injunctive or other interim relief from any court with jurisdiction to protect confidential information, intellectual property or property, or to prevent irreparable harm.

12. Notices

Any notice under this Agreement must be in writing and delivered by hand, by courier, by registered mail, or by email to the address shown in the signature block or another address given by notice.

A notice is received: when delivered, if delivered by hand or courier on a business day before 5:00 PM local time at the place of receipt, and otherwise on the next business day; on the fifth business day after mailing, if sent by registered mail; and when sent, if sent by email before 5:00 PM local time of the recipient on a business day with no automated message that it was not delivered, and otherwise on the next business day.

Routine operational communications may be sent by any reasonable means, but a notice of breach, termination or a claim must also be sent by a method listed above.

13. Entire agreement and general terms

Entire agreement. This Agreement, including any schedules and documents it expressly refers to, is the entire agreement about its subject matter and replaces all earlier discussions, proposals and agreements about that subject matter, whether written or oral.

Amendments and waivers. A change to this Agreement is effective only if it is in writing and signed by each party. A failure or delay in enforcing a right is not a waiver of it, and a waiver of one breach is not a waiver of any other breach.

Assignment. No party may assign this Agreement without the prior written consent of the others, which will not be unreasonably withheld, except that an organization may assign it without consent to a successor to all or substantially all of its relevant business or assets by giving written notice. This Agreement binds and benefits the parties and their permitted successors and assigns.

Severability. If any provision is found invalid or unenforceable, it will be limited or removed to the minimum extent necessary, and the rest of this Agreement stays in full force.

Interpretation. Headings are for convenience only. The words “including” and “includes” mean “including without limitation”. Amounts are in [Currency] unless stated otherwise. A reference to a law includes any amendment or replacement of it.

Language. The parties have expressly required that this Agreement and all related documents be drawn up in English. Les parties ont expressément exigé que la présente entente et tous les documents connexes soient rédigés en anglais.

14. Counterparts and electronic signatures

This Agreement may be signed in any number of counterparts, each of which is an original and all of which together form one document.

The parties agree that this Agreement may be signed and delivered electronically, including through an electronic signature service such as eSora Sign. An electronic signature, and a signed copy delivered by email or as a PDF, has the same legal effect as a handwritten signature on a paper original, to the extent permitted by applicable law, including the U.S. Electronic Signatures in Global and National Commerce Act (ESIGN) and the Uniform Electronic Transactions Act (UETA) as adopted in the relevant state, Part 2 of the Personal Information Protection and Electronic Documents Act (PIPEDA), and provincial electronic commerce legislation in Canada.

Each party consents to receive this Agreement and related notices electronically, and agrees that the electronic record of the signing process, including any certificate of completion and audit trail, may be used as evidence that this Agreement was signed and of when it was signed.

Signatures

By signing below, each signer confirms that they have read and agree to this Agreement and, where they sign for an organization, that they are authorized to bind it.

PARTY A

Organization: [Legal name of organization]

Name: ______________________________

Title: ______________________________

Signature: ______________________________

Date: ______________________________

Email for notices: ______________________________

PARTY B