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A mutual NDA for evaluating a potential business relationship where the parties are in different countries, designed for use under England and Wales law or a selected US state law.
United States (Federal) · England & Wales
Highlighted blanks are the details your parties fill in.
This agreement is dated the date on which it is signed by the last of the parties.
This agreement is made between [TO BE CONFIRMED — Party 1 legal name and details] (the "Party 1") and [TO BE CONFIRMED — Party 2 legal name and details] (the "Party 2").
"Purpose" means [TO BE CONFIRMED — Purpose].
"Term" means [TO BE CONFIRMED — Term] from the date of this agreement.
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"Governing Law" means [TO BE CONFIRMED — Governing Law]; where the US option is selected, it means the laws of the State of [TO BE CONFIRMED — US Governing State], excluding its conflict-of-laws rules.
"Confidential Information" means all information disclosed or made available, directly or indirectly, by or for a party (the Discloser) to the other party (the Recipient), in any form, that is marked confidential or that a reasonable person would understand to be confidential given its nature or the circumstances of disclosure. It includes the existence, subject matter and status of discussions concerning the Purpose, the terms of this agreement, analyses and notes derived from the information, and all copies of it.
Confidential Information does not include information that the Recipient can demonstrate by contemporaneous written records: was lawfully known to it without restriction before disclosure by the Discloser; becomes publicly available other than through breach of this agreement or another duty owed to the Discloser; is lawfully received without restriction from a third party not under a duty of confidentiality; or is independently developed without use of or reference to the Discloser's Confidential Information.
The Recipient must use the Discloser's Confidential Information only for the Purpose and must not use it for its own or any other person's commercial or competitive benefit except as necessary for the Purpose.
The Recipient must keep the Discloser's Confidential Information confidential and must not disclose it to any person except as permitted by this agreement or with the Discloser's prior written consent.
The Recipient must protect the Discloser's Confidential Information using at least reasonable care and no less than the care it uses to protect its own information of similar sensitivity.
The Recipient may disclose Confidential Information to its and its affiliates' directors, officers, employees, professional advisers, auditors, financing sources and contractors (Representatives) who need to know it for the Purpose, provided that each Representative is bound by confidentiality obligations no less protective than those in this agreement or is subject to a professional duty of confidentiality. The Recipient is responsible for its Representatives' compliance with this agreement.
The Recipient may disclose Confidential Information to the extent required by applicable law, regulation, court order or a binding request of a governmental authority, provided that, where legally permitted and reasonably practicable, it gives the Discloser prompt written notice, reasonably cooperates at the Discloser's cost with a protective order or other remedy, and discloses only the portion legally required.
On the Discloser's written request or when discussions concerning the Purpose end, the Recipient must promptly return or destroy the Discloser's Confidential Information, at the Discloser's option, and on request confirm destruction in writing. The Recipient may retain copies required by law or bona fide record-retention policies and copies held in routine backups, provided that retained information remains subject to this agreement and is not restored except for disaster recovery or system maintenance.
This agreement begins on its date and continues for the Term. Either party may end discussions concerning the Purpose at any time by written notice. Ending this agreement or discussions does not affect rights or obligations accrued before the ending date, and the Confidentiality clause, Return and Destruction clause, Protected Disclosures clause, Remedies clause, Liability clause, Indemnity clause, Governing Law and Disputes clause, Service of Process clause, Language clause, and Counterparts and Electronic Signature clause continue as stated or by their nature.
The Recipient's confidentiality and restricted-use obligations for each item of Confidential Information continue for the Confidentiality Period, except that obligations relating to information constituting a trade secret under applicable law continue for as long as that information remains a trade secret through no breach of this agreement.
All Confidential Information remains the property of the Discloser. Except for the limited right to use Confidential Information for the Purpose, neither party grants the other any licence, assignment, right or interest in any intellectual property right or other right by disclosure of Confidential Information or otherwise.
Nothing in this agreement prohibits a Recipient from developing products, concepts, systems or techniques that are similar to or compete with products, concepts, systems or techniques described in Confidential Information, provided the Recipient does not violate any obligation under this agreement in connection with that development.
Neither party is required to disclose any information, continue discussions, enter into any transaction, or refrain from dealing with any other person. Any transaction between the parties must be documented in a separate written agreement signed by both parties.
Nothing in this agreement prevents a Recipient's Representatives from using general skills, knowledge and experience retained in their unaided memory, provided that they do not intentionally memorise Confidential Information to avoid this agreement, disclose Confidential Information, or use any Confidential Information in breach of the Use Restriction clause.
Each party must comply with applicable export-control, re-export-control, sanctions and anti-boycott laws in connection with the receipt, use, disclosure, transfer and access to Confidential Information. Neither party is required to disclose, transfer or provide access to information where doing so would breach those laws or require an unaccepted licence or authorisation.
Nothing in this agreement prohibits or restricts either party or its Representatives from making a disclosure protected by applicable law, including a report to a regulator, law-enforcement authority or other competent authority, or from making a protected disclosure in the public interest under applicable UK law. A person making such a disclosure should, where lawful and practicable, limit it to what is necessary and preserve confidentiality to the fullest extent permitted by law.
Under 18 U.S.C. section 1833(b), an individual is not liable under US federal or state trade-secret law for disclosing a trade secret in confidence to a federal, state or local government official, or to an attorney, solely to report or investigate a suspected violation of law; or for disclosing a trade secret in a complaint or other document filed under seal in a lawsuit or other proceeding. An individual who files a retaliation lawsuit for reporting a suspected violation of law may disclose the trade secret to that individual's attorney and use it in the proceeding if any filing containing the trade secret is made under seal and the trade secret is not disclosed except under court order.
Each party must comply with applicable data-protection and privacy laws in relation to personal data exchanged for the Purpose. Each party acts as an independent controller unless a separate written data-processing agreement states otherwise. A party may use personal data received under this agreement only as necessary for the Purpose, must implement appropriate technical and organisational safeguards, and must not retain it longer than necessary for the Purpose or applicable law.
Neither party may make an international transfer of personal data received under this agreement unless the transfer is permitted by applicable data-protection law and is subject to a valid transfer mechanism where required. The parties must reasonably cooperate to put in place any required transfer documentation; this agreement does not itself replace any mandatory transfer mechanism.
Each party represents that it has authority to disclose its Confidential Information for the Purpose. Except for that representation, Confidential Information is provided "as is". To the fullest extent permitted by law, the Discloser gives no warranty as to accuracy, completeness, non-infringement, merchantability, fitness for purpose or suitability of Confidential Information, and the Recipient remains responsible for its own assessment and decisions.
Each party agrees that unauthorised use or disclosure of Confidential Information may cause harm for which damages alone may be an inadequate remedy. Accordingly, without limiting any other available remedy, the Discloser may seek injunctive or other equitable relief for an actual or threatened breach, without the need to prove actual damages, subject always to the requirements and discretion of the court or tribunal with jurisdiction.
Nothing in this agreement excludes or limits liability that cannot lawfully be excluded or limited. Subject to that, neither party is liable to the other for indirect, incidental, special, exemplary or consequential loss, or for loss of profit, revenue, business, goodwill or anticipated savings, arising from this agreement. This exclusion does not limit either party's liability for breach of the Confidentiality clause, fraud, fraudulent misrepresentation, wilful misconduct, or liability under the Indemnity clause.
Neither party gives an indemnity under this agreement. Each party remains responsible for losses recoverable under applicable law resulting from its breach of this agreement.
This agreement and any non-contractual obligations arising out of or in connection with it are governed by the Governing Law, without regard to conflict-of-laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
The courts of [TO BE CONFIRMED — Court Forum] have exclusive jurisdiction to settle any dispute, controversy or claim arising out of or in connection with this agreement, including any non-contractual obligation. Nothing prevents either party from seeking interim or protective relief in any court of competent jurisdiction.
To the extent permitted by applicable law, each party irrevocably agrees that proceedings and documents relating to a dispute may be served on it at its service address: Party 1 at [TO BE CONFIRMED — Party 1 service address] and Party 2 at [TO BE CONFIRMED — Party 2 service address]. This clause does not prevent service by any other method permitted by applicable law.
This agreement is made in English. If it is translated, the English version prevails to the extent of any inconsistency, to the extent permitted by applicable law.
This agreement may be signed in counterparts, each of which is an original and all of which together form one instrument. Delivery of a signed counterpart by electronic signature, email transmission or other electronic means is effective as delivery of an original signed counterpart, to the extent permitted by applicable law.
Neither party may assign this agreement without the other party's prior written consent, except that either party may assign this agreement in connection with a merger, reorganisation, acquisition or other transfer of all or substantially all its assets or voting securities. Any assignment in violation of this clause is null and void. This agreement binds and benefits each party's permitted successors and assigns.
A waiver must be signed by the waiving party's authorised representative and cannot be implied from conduct.
If any provision of this agreement is held unenforceable, it will be limited to the minimum extent necessary so that the rest of this agreement remains in effect.
This agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, whether written or oral, regarding that subject matter. This agreement may be amended, modified, waived or supplemented only by an agreement in writing signed by both parties.
Notices, requests and approvals under this agreement must be sent in writing to the relevant party at its service address stated in this agreement or to Party 1 at [TO BE CONFIRMED — Party 1 notice email] and Party 2 at [TO BE CONFIRMED — Party 2 notice email], as applicable, and are deemed delivered on receipt.