MUTUAL NONDISCLOSURE AGREEMENT
This Mutual Nondisclosure Agreement (the “Agreement”) is made on ____________________________, 2013 by and between accufRATE, Inc., a California Corporation, and ______________________________________________________. As used this Agreement, the party disclosing Confidential Information is the “Disclosing Party” and the party receiving the Confidential Information is the “Receiving Party.”
1. Purpose. The parties wish to explore a business opportunity of mutual interest (the “Opportunity”) and in connection with the Opportunity, each party may disclose to the other confidential and proprietary information which the Disclosing Party desires the Receiving Party hold in confidence and not to disclose or use except as expressly permitted by this Agreement.
2. Confidential Information. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, business plans, customer data, customer lists, customer names, designs, documents, drawings, engineering information, financial analysis, hardware configuration information, inventions, market information, marketing plans, processes, products, product plans, research, services, specifications, software, source code, trade secrets or any other information which is designated as “confidential,” “proprietary” or some similar designation. Information disclosed orally shall be considered Confidential Information only if the Disclosing Party confirms such information as Confidential Information in writing within a reasonable time after the initial disclosure. The Disclosing Party’s Confidential Information may also include information previously disclosed to the Disclosing Party by a third party. Confidential Information shall not include any information that (a) is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party, generally known or available in the public domain, (b) the Receiving Party can demonstrate was rightfully in its possession prior to its disclosure to the Receiving Party by the Disclosing Party, (c) is obtained by the Receiving Party from a third party without a breach of any obligation to the Disclosing Party or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
3. Obligations. The Receiving Party agrees (a) to hold the Disclosing Party’s Confidential Information in strict confidence, (b) not to disclose the Disclosing Party’s Confidential Information to any third party; provided, however, the Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees [, consultants and professional advisors] who have a bona fide need to know such Confidential Information, but only for the purpose of evaluating the Opportunity and only if such employees [, consultants and professional advisors] are advised of the confidential nature of such Confidential Information and the terms of this Agreement and are bound by a written agreement [or otherwise legally bound] to protect the confidentiality of such Confidential Information and (c) not to use the Disclosing Party’s Confidential Information for any purpose other than to evaluate the Opportunity. In addition, the Receiving Party agrees that it will not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects that embody the Disclosing Party’s Confidential Information. The Receiving Party agrees to be responsible for any breach of this Agreement by any of its employees [, consultants and professional advisors] to whom the Receiving Party discloses the Disclosing Party’s Confidential Information.
4. Maintenance of Confidentiality. The Receiving Party agrees to use all reasonable precautions to protect the confidentiality of and to prevent the unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Without limiting the foregoing, the Receiving Party shall take at least those precautions that it takes to protect its own most highly confidential information and shall ensure that its employees [and consultants] who have access to the Disclosing Party’s Confidential Information have signed an agreement in content similar to the provisions of this Agreement prior to any disclosure of the Disclosing Party’s Confidential Information to any such employee [or consultant]. The Receiving Party shall not copy the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written authorization. The Receiving Party shall reproduce the Disclosing Party’s proprietary rights notices on any such authorized copies in the same manner in which such notices were set forth in or on the original. The Receiving Party shall promptly notify the Disclosing Party in the event of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information.
5. Required Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information if and only to the extent that such disclosure is required by any request or order of any governmental authority or by applicable law; provided, however, the Receiving Party shall notify the Disclosing Party in writing of such requirement prior to disclosing and provide the Disclosing Party a reasonable opportunity to (a) review the disclosure and to interpose its own objection to the disclosure or (b) seek a protective order or other appropriate relief.
6. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will (a) promptly return to the Disclosing Party all copies of the Disclosing Party’s Confidential Information, (b) destroy all notes, abstracts and other documents containing the Disclosing Party’s Confidential Information and (c) provide to the Disclosing Party a written certification of an officer of the Receiving Party that it has done so.
7. No License. Nothing in this Agreement is intended to grant any rights to the Receiving Party in or to (a) any of the Disclosing Party’s Confidential Information except as expressly set forth in this Agreement or (b) any patent, copyright, trade secret or other intellectual property right of the Disclosing Party.
8. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” NEITHER PARTY MAKES ANY WARRANTY, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR PERFORMANCE OF SUCH CONFIDENTIAL INFORMATION.
9. No Obligation. Nothing in this Agreement shall obligate either party to proceed with any contemplated transaction between them, and each party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the Opportunity.
10. Term. The obligations of the Receiving Party under this Agreement shall survive any termination of this Agreement and continue for a period terminating three (3) years from the date the Disclosing Party last discloses Confidential Information to such Receiving Party under this Agreement.
11. Injunctive Relief. The Receiving Party acknowledges that the unauthorized use or disclosure of the Disclosing Party’s Confidential Information would cause irreparable harm to the Disclosing Party and that monetary damages would be inadequate to compensate the Disclosing Party for any such unauthorized use or disclosure. Accordingly, the Receiving Party agrees that the Disclosing Party will have the right to obtain immediate injunctive relief against any breach or threatened breach of this Agreement, without the necessity of proving actual damages, as well as the right to pursue any and all other rights and remedies available at law, in equity or otherwise for such a breach or threatened breach.
12. Miscellaneous. This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This Agreement contains the entire agreement between the parties with respect to the subject matter of this Agreement. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. If any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent on the date of this Agreement. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto. This Agreement may be executed in counterparts, each of which shall be deemed original, and both together shall constitute one and the same instrument.