Non-Disclosure Agreement

MUTUAL NON-DISCLOSURE AGREEMENT

THIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”)

is made on (the “Effective Date”) : [date]

By and between

Name:  [1st company name]

Address:  [1st company address]

And

[2nd company name], a [country] corporation having its principal place of business located at [address] (“[short name]”) (the parties to this Agreement may each hereafter be referred to as a “Party”, and collectively as the “Parties”).

W I T N E S S E T H:

WHEREAS, each of the Parties believes that in the course of discussing, investigating, and evaluating certain matters, each may learn or receive certain Confidential Information (as such term is defined in Section 1 below) from one another; and

WHEREAS, each of the Parties desires to ensure that such Confidential Information provided will not be used by the Party receiving such information, except as is permitted in this Agreement.  

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

For the purposes of this Agreement, the term “Confidential Information” shall refer to any information provided by one Party to the other, or which either Party learns of in the course of its dealings with the other, and shall include without limitation any data, trade secret or other information which could reasonably be expected to be proprietary and confidential to the disclosing Party or to its “Affiliates” (as defined below), and which shall specifically include but not be limited to any proposed terms of any potential business opportunities that might be discussed by or among the Parties, the fact that Confidential Information has been made available, that the Parties are considering possible activities or transactions relating to a proposed transaction or that discussions or negotiations will take, are taking or have taken place concerning a possible proposed transaction (“Activities”) or any term, condition or other fact related to possible Activities or such discussions or negotiations.  Until the Parties have executed a definitive written agreement covering the Activities, neither Party shall communicate with any personnel of the other Party, except those designated by the other Party, on any matters pertaining to the Activities or Confidential Information of the other Party.

For the purposes of this definition, the term “Affiliate” shall mean (a) each person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, 5% or more of the stock having ordinary voting power in the election of directors of a Party to this Agreement, (b) each person that controls, is controlled by or is under common control with a Party to this Agreement, (c) each of the officers, directors, joint venturers and partners of a Party to this Agreement. 

For the purposes of this definition, “control” of a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.

Any information disclosed by one Party to another shall not be considered “Confidential Information” if such information: (i) thereafter becomes generally available to the public through no fault of the receiving Party; (ii) is, prior to its initial disclosure hereunder, in the possession of the receiving Party; (iii) is acquired by the receiving Party from any third party without any restrictions on its use or disclosure; or (iv) is independently developed by the receiving Party without use of the Confidential Information. 

Each Party, together with its employees, Affiliates, representatives and agents shall ensure that all Confidential Information that it receives from the other shall be protected and held in confidence by using the same degree of care to prevent the unauthorized use, dissemination or publication of such Confidential Information as the Party receiving the Confidential Information uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care.  Each Party, together with its employees, Affiliates, representatives and agents shall further ensure that all Confidential Information that it receives from the other is disclosed only to those employees, or other parties that need to know such information in connection with the possible Activities and who are bound by fiduciary or contractual obligations to keep the Confidential Information confidential (“Interested Parties”), and to no other party.  Each Party shall clearly instruct such employees and Interested Parties not to violate the restrictions contained herein, shall take appropriate steps to ensure that these obligations are fulfilled and shall remain liable for any breach of such restrictions by such employees and Interested Parties.  Except as expressly set forth above, each Party agrees not to disclose said Confidential Information that it has received from the other Party to any other third party unless it has the prior written approval of the disclosing Party and the person/entity to whom the Confidential Information is bound by a confidentiality obligation with terms no less stringent that those set forth in this Agreement. The receiving Party shall not be deemed in breach of this Agreement with respect to Confidential Information that is required to be disclosed in accordance with applicable laws, rules, or regulations or court order, or by the rules of an exchange or market upon which its securities are traded or sold, solely to the extent required thereby, provided that the receiving Party shall have made a reasonable effort to lawfully prevent or avoid such disclosure, shall have promptly notified the disclosing Party of any requirement or effort to compel disclosure prior to any such disclosure, and reasonably co-operates and assists with the disclosing Party’s lawful attempts to prevent disclosure and/or to obtain a protective order.

The term of this Agreement shall be three (3) years from the Effective Date of execution of this Agreement. The obligations of each Party, its employees, subsidiaries, affiliates, and agents to protect said Confidential Information is effective as of the date of disclosure, and shall continue for three (3) years thereafter, except that, in the case of any Confidential Information that constitutes a trade secret under applicable law, the obligations of each Party, its employees, subsidiaries, affiliates, and agents to protect such trade secret Confidential Information shall continue after said three (3) year period for so long as such Confidential Information remains a trade secret under applicable law.

Confidential Information is and shall remain the property of disclosing Party along with all associated intellectual property rights owned by disclosing Party.  Neither the disclosure of Confidential Information, any expiration or termination of the duty to protect from disclosure or anything else contained in this Agreement (including, without limitation, the right to use Confidential Information as set forth above) shall be construed as granting or conferring any right or license under any patent, trade secret, copyright or other intellectual property right of any disclosing Party, except as otherwise specifically set forth herein with respect to the use of Confidential Information.  Upon provision of a written request by one Party to another, each of the Parties agrees to promptly return or destroy the other Party’s Confidential Information provided by the other Party.  Further, upon the request of one Party, the other shall promptly certify in writing that all such Confidential Information has been destroyed or returned to the requesting Party.  

In addition, the Parties acknowledge their awareness that applicable securities laws impose restrictions on trading in securities when in possession of material non-public information, such as the Confidential Information that each of the Parties may receive from the other Party in connection with the evaluation of the possible Activities. Under applicable securities laws, no person may legally buy, sell or otherwise trade in the securities (including options) if such person possesses material non-public information about the applicable securities. Generally, “material” information is that which would be expected to affect the investment decision of a reasonable investor or affect the market price of the securities. A person may be subject to substantial civil and criminal penalties for: (a) trading in such securities prior to public disclosure of the material information, (b) improperly disclosing such information to another person who may use that information to trade in such securities, or (c) making buy or sell recommendations to third parties based on such information. Further, a Party may incur liability for such trading by its (or any of its Affiliates’) employees or representatives under this Agreement. As a consequence, each of the Parties acknowledges that the existence of the Activities may constitute material non-public information and that all Interested Parties should refrain from all trading in the securities of the other Party unless it has been reasonably determined, including through the consultation of legal counsel, that the Activities do not constitute material non-public information.

The Parties acknowledge and agree that the covenants set forth in this Agreement are reasonable and necessary for the protection of the Parties’ business interests, that irreparable injury may result if they are breached, and that in the event of any actual or potential breach of any such covenant that the non-breaching Party may have no adequate remedy at law and shall be entitled to seek immediate temporary injunctive relief.  

Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity.

The failure of either Party to partially or fully exercise any right or the waiver by either Party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.

Neither Party shall assign any of its rights or obligations under this Agreement to any other entity without the other Party’s prior written consent. All of the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable by, the respective successors and assigns of the Parties hereto.

THERE ARE NO WARRANTIES EXPRESSED OR IMPLIED AS TO THE ACCURACY OF SAID CONFIDENTIAL INFORMATION, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. 

This Agreement imposes no obligation on either Party to enter into any Activities or to start negotiations, enter into an agreement, purchase, sell, license, transfer or otherwise dispose of any technology, services, products, stock or assets. This Agreement does not create any agency, partnership, joint venture or alliance relationship. Either Party may terminate discussions at any time and for any reason. Except for breaches of obligations set forth herein, unless a written definitive agreement concerning any Activity is executed and delivered, neither Party will have any liability to the other Party with respect to any proposed Activity, whether by virtue of this Agreement or by any other written or oral expression with respect to the Activity or otherwise.

In the event of a breach of confidentiality, the aggrieved party may register a “Breach of Confidentiality” dispute on www.disputesregister.org.

The legality, validity, enforceability and interpretation of this Agreement and the relationship of the Parties hereunder shall be governed by the laws of [insert country], without regard to its choice of laws provisions.  The competent courts of [insert city], [insert country], shall have exclusive jurisdiction to settle any dispute, claim, cause of action, suit or demand allegedly arising out of or related to this Agreement. The prevailing Party in any legal action or proceeding that arises from, is based on or relates to this Agreement shall have the right to recover from the other Party the reasonable legal fees and expenses it incurs in connection with such action or proceeding. 

This Agreement contains the entire understanding of the Parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the Parties regarding its subject matter.  Each provision of this Agreement may only be modified, supplemented, amended or waived in a writing signed by both Parties that expressly modifies, supplements, amends or waives such provision. 

IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed in the manner appropriate to each, effective as of the Effective Date.

[1st company name]                                                            [2nd company name]

By: [1st company representative]                      By: [2nd company representative]

Name: [name 1]                                                                 Name: [name 2]

Title:  [title 1]                                                                      Title: [title 2]