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MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

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THIS AGREEMENT, is made this day of  _____________, 20____, between____________________________(and/or any related entity), and ____________________________(and any related entity).  Each PARTY above may hereinafter be referred to as a RECEIVING PARTY or DISCLOSING PARTY as defined below.  Hereinafter, the above individuals, entities, companies or organizations shall collectively be referred to as “PARTIES”.


WHEREAS, the PARTIES have requested information from each other in connection with the consideration of a possible business relationship and/or transaction between the PARTIES and/or any Third PARTY introduced by one PARTY to the other PARTY.


WHEREAS, in the course of consideration of the possible transaction or relationship, the PARTIES may disclose to each other or exchange, confidential, sensitive or proprietary information and intellectual properties, including but not limited to: business plans, business concepts and/or ideas, executive summaries, deal structures, third party relationships and contacts, co-venture partnerships and relationships, lending organizations or individuals, banks, investors, trusts, management organizations, sellers, buyers, or any other information or documentation relating to the PARTY disclosing said information and that and the Project (as such term is defined below) which the parties hereto consider highly confidential and proprietary.


THEREFORE, the above PARTIES and agree to enter into a confidential relationship with respect to the disclosure of certain information and the PARTIES hereto, intending to be legally bound in consideration of the mutual covenants and agreements set forth herein, hereby agree as follows:


1.  DEFINITIONS – The following Definitions will apply to this Agreement:

    1. “Project” shall mean information, ideas, documentation and materials relating to a contemplated business plan, venture and/or relationship including all information relating to the business concepts, ideas, scripts, synopsis, budgets, documentation, programs, products, applications, systems, components, technologies and business topics contained therein.

1.2.        “Confidential Information” shall mean all information provided by one Party to the other Party with respect to the Project whether directly or indirectly, regardless of whether it is written, oral, audio tapes/files, video tapes/files, computer discs, plant and equipment, specifications, articles of manufacture, drawings, human or machine readable documents (including without limitation any executive summary), and other information related to the Project’s business including actual or projected sales, volumes, costs, customers, pricing, procedures, compensation programs, incentive programs, or marketing strategies), together with any analysis, compilations, forecasts, studies or other documents.  The term “Confidential Information” may also include information disclosed through one Party to the other Party through associated third-parties. Confidential Information shall also include all information related to the Project provided by either Party to other Party prior to the signing of this agreement.  Confidential Information shall not include any of the following:

  1. such information in the public domain at the time of the disclosure, or subsequently comes within the public domain without fault of the Receiving Party;

(b)       such information which was in the possession of Receiving Party at the time of disclosure that may be demonstrated by business records of Receiving Party and was not acquired, directly or indirectly, from Disclosing Party; or
(c)       such information which Receiving Party acquired after the time of disclosure from a third party who did not require Receiving Party to hold the same in confidence and who did not acquire such technical information from Disclosing Party.

1.3.      “Disclosing Party” shall mean the party so defined above.

    1. “Receiving Party” shall mean the party so defined above.
    2. “Authority” means an administrative, judicial, legislative, regulatory or other competent governmental authority.

2.  USE OF CONFIDENTIAL INFORMATION –


2.1.                  The Receiving Party agrees to:
(a)  receive and maintain the Confidential Information in confidence;
(b)  examine the Confidential Information at its own expense;
(c)  not reproduce the Confidential Information or any part thereof without the express consent of Disclosing Party;

  1. limit the internal dissemination of the Confidential Information and the internal disclosure of the Confidential Information received from the Disclosing Party to those officers and employees, if any, of the Receiving Party who have a need to know for the purpose of evaluating the Project and an obligation to protect it; moreover, Recipient agrees that such persons shall be informed by Recipient of the confidential nature of the Confidential Information and such persons shall agree to act in accordance with the terms and conditions of this Agreement;
  2. not use the Confidential Information or any part thereof as a basis for the design or creation of any business, method, system, concept or operation similar to any business, method, system, concept or operation embodied in the Confidential Information unless expressly authorized in writing by Disclosing Party;
  3. utilize the best efforts possible to protect and safeguard the Confidential Information from loss, theft, destruction, or the like.
    1. If an Authority orders Recipient to disclose any Confidential Information, Recipient must promptly provide Disclosing Party with details of the order and the Confidential Information to which it relates, and must use his best efforts to cooperate with Disclosing Party if steps are taken to challenge the order and prevent or limit disclosure.  Provided that a party complies with this clause, any disclosure or copying of Confidential Information required by the order does not breach this agreement.
    2. Recipient shall be responsible for any breach of this Agreement its agents, representatives or employees.
    3. Recipient acknowledges that neither Disclosing Party nor any of its affiliates makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and each Disclosing Party and affiliates expressly disclaims any and all liability that may be based on the Confidential Information, errors therein or omissions therefrom.  Recipient agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that Recipient shall be entitled to rely solely on the representations and warranties made to Recipient by any of the Disclosing Parties in any final agreement regarding the Project.

3.  RETURN OF CONFIDENTIAL INFORMATION - All information provided by the Disclosing Party shall remain the property of the Disclosing Party.  Receiving Party agrees to return all Confidential Information to Disclosing Party within 10 days of written demand by Disclosing Party. 
 
4.  NON-ASSIGNABLE - This agreement shall be non-assignable by the Receiving Party unless written consent of the Disclosing Party is received.  Fax and electronic transmission is acceptable consent.  If this Agreement is assigned or otherwise transferred, it shall be binding on all successors and assigns.
 
5.  GOVERNING LAW - This Agreement and all questions relating to its validity, interpretation, performance and enforcement (including, without limitation, provisions concerning limitations of actions), shall be governed by and construed in accordance with the laws of the State of California and county of Los Angeles, notwithstanding any conflict-of-laws doctrines of such state or other jurisdiction to the contrary.
 
6.  NO LICENSE - Neither party does, by virtue of disclosure of the Confidential Information, grant, either expressly or by implication, estoppel or otherwise, any right or license to any concept, trade name, trade secret, trademark, copyright, or other intellectual property right.
 
7.  PROVISIONS SEPARABLE - The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
 
8.  ENTIRE AGREEMENT - This Agreement sets forth all of the covenants, promises, agreements, conditions and understandings between the parties and there are no covenants, promises, agreements or conditions, either oral or written, between them other than herein set forth.  No subsequent alteration, amendment, change or addition to this Agreement shall be binding upon either party unless reduced in writing and signed by them.

9.  REMEDIES – Receiving Party acknowledges and agrees that any breach of this agreement may cause irreparable harm to Disclosing Party for which the payment of damages would not be an adequate remedy and that the Disclosing Party is therefore entitled, in addition to any other rights and remedies it may have, to apply for and obtain immediate injunctive or equitable relief to enforce obligations under this agreement.

IN WITNESS OF THEIR AGREEMENT, the parties have set their hands to it below effective the day and year first written above. 

By:___________________________________________
           

 

By: _________________________________________
           

 

By: ___________________________________________           

 

Word Document version.