This Mutual Nondisclosure Agreement (the “Agreement”) is made as of the date in the title of this document by and between [full name of first party including name of corporation, if any] (“Party 1”), and [full name of other party including name of corporation, if any], (“Party 2”). Party 1 and Party 2 are each a “Party” and together are the “Parties” to this Agreement. The Parties agree to the following binding terms and conditions.
Purpose. Party 1 and Party 2 wish to explore a possible business opportunity and/or artistic collaboration of mutual interest (the “Relationship”) in connection with which each Party has disclosed and/or may further disclose its Confidential Information (as defined below) to the other Party. A Party disclosing Confidential Information shall be referred to as a “Provider”, and a Party receiving such Confidential Information shall be referred to as a “Recipient”. This Agreement is intended to allow the Parties to discuss, evaluate, and/or pursue the Relationship while protecting their respective Confidential Information (including Confidential Information previously disclosed to a Recipient) against unauthorized use or disclosure.
Definition of Confidential Information. “Confidential Information” means any oral, written, graphic or machine?readable information including, but not limited to, that which relates to screenplays, characters, stories, story ideas, drawings, illustrations, cartoons, patents, patent applications, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, algorithms, business plans, agreements with third parties, services, customers, marketing or finances of a Party, which Confidential Information is designated in writing to be confidential or proprietary, or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed thirty days) after the oral disclosure, or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Notwithstanding any failure to so identify them, all screenplays, characters, stories, story ideas, product, and business plans shall be Confidential Information.
General Rule of Nondisclosure. Each Recipient agrees not to use any Confidential Information disclosed to it by a Provider for its own use or for any purpose other than to carry out discussions concerning, and the undertaking of, the Relationship. A Recipient shall not disclose or permit disclosure of any Confidential Information of a Provider to third parties or to employees of such Recipient, other than directors, officers, employees, consultants and agents (each a “Representative”) of such Recipient (including those of any parent, subsidiary or affiliate) who are required to have the information in order to carry out the discussions regarding the Relationship. Such Recipient has had or will have its and its parent’s, subsidiaries’ and affiliates’ Representatives who have access to Confidential Information of the Provider sign a nondisclosure agreement in content substantially similar to this Agreement and shall notify the Provider in writing of the names of each person who has signed such agreements promptly after such agreements are signed. Such Recipient agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the Provider 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 any such information. Such measures shall include, but not be limited to, the highest degree of care that such Recipient utilizes to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care. Such Recipient further agrees to notify Party 1 in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of the Provider’s Confidential Information which may come to such Recipient’s attention. Such Recipient also agrees to accept responsibility for any breach of this Agreement by any of such Recipient’s Representatives, and at such Recipient’s sole expense to take all reasonable measures (including but not limited to court proceedings) to restrain such Recipient’s Representatives from prohibited or unauthorized disclosure or uses of the Confidential Information.
Exceptions. Notwithstanding the above, a Recipient shall not have liability to the Provider with regard to any Confidential Information which such Recipient can prove:
- was in the public domain at the time it was disclosed by the Provider or has entered the public domain through no fault of such Recipient;
- was known to such Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure;
- was disclosed with the prior written approval of the Provider;
- becomes known to such Recipient, without restriction, from a source other than the Provider without breach of this Agreement by such Recipient and otherwise not in violation of the Provider’s rights; or
- is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that such Recipient shall provide prompt notice of such court order or requirement to the Provider to enable the Provider to seek a protective order or otherwise prevent or restrict such disclosure.
No Modification. Each Party agrees that it shall not modify, reverse engineer, decompile, create other works from or disassemble any software programs contained in the other Party’s Confidential Information unless permitted in writing by the other Party.
No Duplication; Return of Materials. Unless otherwise expressly authorized by the other Party, no Party may make any copies or duplicates of any Confidential Information. If either Party decides that it does not wish to proceed with the Relationship with the other Party, it will promptly inform the other Party of that decision. Any materials or documents that have been furnished by a Provider to a Recipient in connection with the Relationship shall be promptly returned by such Recipient, accompanied by all copies of such documentation, within ten days after (a) the Relationship has been rejected or concluded or (b) the written request of the Provider.
No Rights Granted. Nothing in this Agreement shall be construed as granting any rights under any patent, copyright or other intellectual property right of a Provider, nor shall this Agreement grant a Recipient any rights in or to such Provider’s Confidential Information other than the limited right to review such Confidential Information solely for the purpose of determining whether to enter into the Relationship or undertaking the Relationship. Nothing in this Agreement (i) requires the disclosure of any Confidential Information, which shall be disclosed, if at all, solely at a Provider’s option, or (ii) requires a Party to proceed with the Relationship or any transaction in connection with which the Confidential Information may be disclosed.
Separate Agreement Required. In the event the Parties decline to ultimately form a business or collaborative Relationship, said Relationship necessarily and by definition marked by a separate written agreement, the instant Agreement runs in perpetuity. In the event the Parties do form a business or collaborative Relationship, said Relationship necessarily and by definition marked by a separate written agreement foregoing commitments of each Party shall survive any termination of the Relationship between the Parties, and shall continue for a period terminating (i) five years following the date of this Agreement or (ii) three years from the date on which Confidential Information is disclosed under this Agreement, whichever runs last.
Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that a Provider’s Confidential Information may not be assigned without the prior written consent of such Provider. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
Enforceability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the Parties agree to renegotiate such provision in good faith. In the event that the Parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the balance of the Agreement shall be enforceable in accordance with its terms.
Independent Contractors. The Parties are independent contractors, and nothing contained in this Agreement shall be construed to constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
Governing Law; Jurisdiction. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the Parties shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Each of the Parties consents to the exclusive jurisdiction and venue of the courts located in San Francisco, California.
Remedies; Indemnification. The Parties each agree that the obligations of a Recipient set forth in this Agreement are necessary and reasonable in order to protect the Provider and its business. The Parties each expressly agree that due to the unique nature of a Provider’s Confidential Information, monetary damages would be inadequate to compensate such Provider for any breach by a Recipient of its covenants and agreements set forth in this Agreement. Accordingly, the Parties each agree and acknowledge that any such violation or threatened violation shall cause irreparable injury to such Provider and that, in addition to any other remedies that may be available, in law, in equity or otherwise, such Provider shall be entitled (a) to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by such Recipient, without the necessity of proving actual damages, and (b) to be indemnified by such Recipient from any loss or harm, including but not limited to attorney’s fees, arising out of or in connection with any breach or enforcement of such Recipient’s obligations under this Agreement or the unauthorized use or disclosure of such Provider’s Confidential Information.
Amendment and Waiver. Any term of this Agreement may not be amended without the written consent of all Parties. Any amendment or waiver effected in accordance with this Section shall be binding upon the Parties and their respective successors and assigns. Failure to enforce any provision of this Agreement by a Party shall not constitute a waiver of any term hereof by such Party.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Upon execution each Party shall provide the other an original signed copy of the Agreement.
Integration Clause. This Agreement is the product of both of the Parties, and constitutes the entire agreement between such Parties pertaining to the subject matter hereof, and merges all prior negotiations and drafts of the Parties with regard to the transactions contemplated herein. Any and all other written or oral agreements existing between the Parties regarding such transactions prior to the Effective Date found in the title of this Agreement, are expressly canceled.
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