Exemplo de Mutual Non Disclosure Agreement - USA

Exemplo de um Mutual Non-Disclusore Agreement

Sob as leis dos EUA
Estado da Califórnia




MUTUAL NON-DISCLOSURE AGREEMENT

Each undersigned party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (including, without limitation, computer programs, software, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information), which to the extent previously, presently, or subsequently disclosed to the Receiving Party is hereinafter referred to as "Confidential Information" of the Disclosing Party.

In connection with a possible transaction between the parties, and in consideration of the parties' discussions, and any access of the Receiving Party to Confidential Information of the Disclosing Party, the Receiving Party hereby agrees as follows:

1. Each party agrees that for a period of three (3) years from the date of disclosure it will (i) hold the Confidential Information disclosed by the other party in confidence, (ii) not disclose such Confidential Information to any one other than the Representatives (as defined below) of the recipient, and (iii) not use any such Confidential Information of the other party for any purpose, other than for the purpose of evaluating a possible transaction with the other party, and not in any other manner, including, without limitation, in any way directly or indirectly detrimental to the other party (the "Business Purpose"). Each party shall protect and prevent the unauthorized use, dissemination, or publication of the Confidential Information disclosed by the other party by using the same degree of care as the Receiving Party uses to protect its own confidential information of like importance, but in any case using no less than a reasonable degree of care. Notwithstanding anything to the contrary in the preceding two sentences, each party may disclose Confidential Information disclosed by the other party to it and its Affiliates’ employees, directors, officers, attorneys, accountants, financial advisors, agents and contractors who have a bona fide need to know and are subject to appropriate obligations of confidentiality (collectively, "Representatives"), but only to the extent necessary to carry out the Business Purpose. Each party will remain liable for any breach of this Agreement by its Affiliates or Representatives. (For purposes of this Agreement, an "Affiliate" shall mean an entity controlled by, controlling or under common control with either party hereto, as applicable, but only so long as such control exists. The cessation of such control shall not release an Affiliate of its obligation to comply with the terms and conditions of this Agreement for the period of time stated herein, nor release the Receiving Party from its obligation to treat the Confidential Information of such Affiliate in accordance with this Agreement.)

2. Each party’s obligations with regard to Confidential Information will not apply to the extent the Receiving Party can document that information disclosed by a party:

(i) is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party, generally known or available to the public other than by a breach of this Agreement by the Receiving Party or its Representatives;
(ii) was acquired by the Receiving Party before receiving such information from the Disclosing Party without restriction as to use or disclosure;
(iii) is hereafter rightfully furnished to the Receiving Party without restriction as to use or disclosure by a third party authorized to make such disclosure;
(iv) is information that was independently developed by the Receiving Party without reference to the Confidential Information disclosed by the other party; or
(v) is disclosed with the prior written consent of the other party.
In addition, each party shall be entitled to disclose Confidential Information in a proceeding brought to enforce its rights and obligations under this Agreement.
3. In the event the Receiving Party is required by law, regulation or a valid and effective subpoena or order issued by a court of competent jurisdiction or by a governmental body having proper jurisdiction, to disclose any of the Confidential Information disclosed by the other party, the Receiving Party will promptly notify the other party in writing of the existence, terms and circumstances surrounding such required disclosure so that the Disclosing Party may seek a protective order or other appropriate remedy from the proper authority. The Receiving Party agrees to cooperate with the Disclosing Party in seeking such order or other remedy. The Receiving Party further agrees that if it is required to disclose Confidential Information of the other party, it will furnish only that portion of the Confidential Information that is legally required to be furnished and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such Confidential Information.

4. The Receiving Party will promptly return to the Disclosing Party, or, if so directed by the Disclosing Party in writing, destroy all tangible items containing or consisting of the Disclosing Party's Confidential Information and all copies thereof upon the Disclosing Party's request. In addition, upon request of a party, the other party shall destroy all Confidential Information of the requesting party, and shall certify such destruction by a duly authorized officer upon the request of the other party. Notwithstanding the return or destruction of any Confidential Information, the Receiving Party will continue to be bound by its obligations of confidentiality and other obligations hereunder.

5. Each party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to the Receiving Party, by license or otherwise, to any of the Confidential Information disclosed by the Disclosing Party except as specified in this Agreement. Additionally, this Agreement imposes no obligation on either party to purchase, sell, license, transfer or otherwise dispose of any technology, services or products, or to engage in any other business transaction. Nothing in this Agreement shall be deemed to grant to either party a license under the other party’s copyrights, patents, trade secrets, trademarks or other intellectual property rights.

6. Nothing in this Agreement, any discussions undertaken, nor any disclosures made pursuant to this Agreement shall be deemed a commitment to disclose any information to the other party or to engage in any business relationship, contract or future dealing with the other party. In addition, nothing in this Agreement shall be deemed to limit either party’s right to conduct similar discussions or perform similar activities to those undertaken in accordance with this Agreement.

7. Each party understands and acknowledges that neither party makes any representation or warranty, express or implied, as to the accuracy or completeness of Confidential Information disclosed hereunder. The Disclosing Party shall have no liability or responsibility for errors or omissions in, or any decisions made by the Receiving Party in reliance on, any Confidential Information disclosed under this Agreement.

8. Each party acknowledges that (a) all Confidential Information disclosed by the other party is owned solely by the Disclosing Party (or its contractors or licensors), (b) such Confidential Information is valuable to the Disclosing Party, and (c) the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury to the Disclosing Party, for which monetary damages alone would not be an adequate remedy. Accordingly, each party agrees that in the event of a breach or threatened breach of this Agreement, the Disclosing Party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to, and not in lieu of any other remedies available to the Disclosing Party, including but not limited to monetary damages.

9. No waiver, modification or amendment of any provisions of this Agreement shall be valid unless made in writing, signed by both parties, and specifying with particularity the nature and extent of such a waiver, modification or amendment. No such waiver, modification or amendment shall be construed to be a general waiver, abandonment, modification or amendment of any of the terms, conditions or provisions of this Agreement, and such waiver shall be strictly limited and restricted to the extent and occasion specified in such signed writing. This Agreement is the complete and exclusive statement regarding the subject matter of this Agreement and supersedes all prior and contemporaneous agreements, understandings and communications, oral or written, between the parties regarding the subject matter of this Agreement, including without limitation, any and all non-disclosure agreements previously entered into between the parties to this Agreement or any of their respective Affiliates.

10. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees. This Agreement shall be construed in accordance with, and all disputes hereunder shall be governed by, the laws of the State of California, without giving effect to any choice of laws principles that would require the application of the laws of a different country or state. Any legal action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby must be instituted exclusively in a court of competent jurisdiction, federal or state, located within the State of California, County of Santa Clara, and in no other jurisdiction. Each party further irrevocably consents to personal jurisdiction and venue exclusively in, and agrees to service of process issued or authorized by, any such court.

11. Neither party shall assign any of its rights or obligations hereunder, except to an Affiliate or successor in interest, without the prior written consent of the other party, which consent shall not be unreasonably withheld.

12. No failure or delay 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 hereunder.

13. The parties shall adhere to all applicable laws, regulations and rules relating to the export of personal information and technical data, and shall not export or re-export any personal information or technical data, any products received from the Disclosing Party, or the direct product of such personal information or technical data, except in accordance with such applicable laws, regulations and rules.

14. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.

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IN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement effective as of November ____, 2006.