A Non-disclosure Agreement (NDA) is legal contract between you and at least one other party to not disclose specific shared information. NDAs are used to share confidential information with another party while legally forbidding that party from disclosing the information.
NDAs are either two-way or one way. A one-way NDA is used when only one party is sharing information and the other party agrees to keep it confidential. A two-way NDA is used when both parties are sharing confidential information with each other and both agree to keep information shared by the other confidential.
COMMON SECTIONS TO BE INCLUDED
1. A listing of the parties in the agreement
This NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the __ day of _________, 2012, by and between _______________, a _______ ___________ (including its affiliates), and ________, INC., a _____ corporation (including its affiliates). _______ and _____ may each be referred to herein as a “Party,” and collectively, as the “Parties.”
The Parties have expressed interest in a possible business transaction which may involve the development of products or services through the use of proprietary information (a “Transaction”).
2. Define confidential information. List all information to be held confidential.
For purposes of this Agreement, “Confidential Information” means all information provided or made available by or on behalf of ____ in connection with the evaluation or negotiation of the Transaction, whether furnished before or after the date of this Agreement, whether or not labeled or otherwise identified as confidential and regardless of the form or format of the information (written, verbal, tangible or intangible, electronic or otherwise) or the manner or media in or through which it is furnished to or otherwise obtained by the ___ or any officer, director, employee, agent, partner, member, manager, lender, adviser or other representative (including any accountant, attorney or financial advisor) (each, a “Representative,” and collectively the “Representatives”) of the ____, including, without limitation, all nonpublic personal information regarding customers, consumers or employees of _____ that may be disclosed under this Agreement (“Consumer Information”), the terms of this Agreement or any subsequent agreement concerning the possible or actual formation of a Transaction. The term “Confidential Information” also includes all reports, analysis, notes, studies, forecasts, compilations, interpretations or other information based on, containing or reflecting any Confidential Information. Notwithstanding anything contained herein to the contrary, Confidential Information shall not include information that: (a) is or has become generally known to the public through no direct or indirect act or omission of the _____ or any of its Representatives; (b) was already known by, or is or becomes lawfully available to, the ____ or its Representatives from a source other than ____ or its Representatives and who is not prohibited from disclosing the Confidential Information to the _____ by any contractual, legal or fiduciary obligation; or (c) the _____ demonstrates by written evidence was independently developed by the ____ or its Representatives without any reliance on the Confidential Information. Confidential Information will not be deemed to be generally know to the public solely by reason of having been included in a patent or copyright application filed in a country in which such applications are not kept confidential or are published as part of the patenting or copyright process. “Generally known to the public” means only information that is generally known to the public in the country in which the Confidential Information is sought to be used, and does not include information that can be derived only through significant expenditure of time or effort to assemble, compile or reconstruct, even though individual portions of the information may be publicly available.
3. Definite confidentiality obligations.
(a) The _____ shall maintain in strict confidence the Confidential Information and will use the Confidential Information solely for the purpose of evaluating and consummating a Transaction and for no other purpose. The ____ shall not, without the prior written consent of ____, disclose or permit to be disclosed any Confidential Information to any person other than the _____ Representatives who are assisting in the evaluation and performance of a Transaction and who reasonably need to know the Confidential Information. Such persons shall be advised by the Company of the confidential nature of the Confidential Information and shall be bound to keep the same confidential to the same extent as the Company. The ____ shall be liable for any violations of this Agreement by any of its Representatives.
(b) The ____ shall take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, the Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have access to the Confidential Information. Such measures shall include, but not be limited to, the same standard of care that the ____ uses to protect its own Confidential Information, which shall be no less than a reasonable standard of care.
(c) Without the prior written consent of _____, the _____ will neither itself, nor permit any of its Representatives to, disclose to any person any information with respect to (i) the fact of its receipt of, or access to, any Confidential Information, (ii) the fact, nature or status of any discussions between ______ and the _____, or (iii) any other facts or information with respect to the nature, terms or status of a Transaction.
(d) The _____ agrees to notify _____ in writing of any actual or suspected breach of this Agreement, including, without limitation, any misuse, misappropriation or unauthorized disclosure of the Confidential Information that comes to the attention of the _____ or any of its Representatives.
4. Define the disclosure period and the length of confidentiality.
This Agreement shall be effective on the date last below written and shall continue in full force and effect until ____ supplies Company with the last item of Confidential Information and at all times thereafter. The obligations of ____ hereunder shall survive any termination of discussions regarding the Transaction between ____ and Recipient. Unless otherwise agreed in writing, this Agreement shall govern Confidential Information disclosed by ____ to ____ prior to (as well as after) the effective date hereof.
To be continued…
NOTE: The SAMPLE EXCERPT provided here are not tailored to your particular needs and situation and should be not used as such. Please consult a qualified attorney to create a NDA according your needs.