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Mutual Non Disclosure Agreement

EXAMPLE WORDING FOR MUTUAL NON DISCLOSURE AGREEMENT. BY CONTINUING TO COMMUNICATE WITH TELLART BV YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND ACCEPTED THE APPLICABILITY OF THE BELOW DOCUMENT. 

This agreement is made and entered into on [Day Month Year], 

by and between

Tellart B.V., a company with limited liability duly incorporated under the laws of the Netherlands, registered with the Chamber of Commerce no. 60609567, having its corporate seat at Arie Biemondstraat 111, 1054 PD Amsterdam, The Netherlands, represented by Paul Skinner, in his capacity as CEO, hereinafter referred to as “Tellart“; and

[Person] a resident in [country where the person lives], with National Identification Number no. [……………], and having his/her address at [complete address], hereinafter referred to as Client.

Tellart and Contractor shall be referred to herein either individually as a “Party” or collectively as the “Parties“.

HEREBY AGREE AS FOLLOWS:

  1.   PURPOSE.

1.1 The Parties wish to enter into negotiations about a potential transaction with regard to services rendered by either one or both of the Parties (the “Purpose”). 

1.2 In connection with the Purpose, each Party may disclose or have already disclosed (the “Disclosing Party”) to the other Party (the “Receiving party”) certain confidential technical and/or business information which the Disclosing Party desires the Receiving Party to treat as confidential.

 

  1.   CONFIDENTIAL INFORMATION.

2.1 “Confidential Information” means any information disclosed in connection with the Purpose by either Party to the other Party, either directly or indirectly, in writing, orally, or by inspection of tangible objects regardless of its designation as “Confidential”, “Proprietary”, or some similar designation – including, without limitation, trade secrets, (future) business data and business information or plans, invention descriptions, technical information relating to proprietary ideas and inventions, patentable ideas, drawings and illustrations, financial information, identity/description of customers or business partners, training manual, workbook, algorithm, computer program (source and object code), designs, any work in process, future development, engineering and manufacturing of products or services, and marketing, servicing, financial or personnel matters relating to the Disclosing Party, its present or future products, sales, suppliers, clients, customers, employees, investors or business, whether in oral, written, graphic or electronic form.

2.2 Confidential Information shall not, however, include any information which:

  1. was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party;
  2. becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party;
  3. is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure;
  4. is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality;
  5. is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession; 
  6. is required by law to be disclosed by the Receiving Party, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to such disclosure and reasonable assistance in obtaining an order protecting the information from public disclosure; or
  7. is the subject of a written permission to disclose provided by the Disclosing Party.

 

  1.   NON-USE AND NON-DISCLOSURE.

3.1 Party agrees not to use any Confidential Information of the other Party for any reason except to fulfil its obligations in connection with the Purpose.

3.2 Each party shall maintain all Confidential Information in trust and confidence and shall not disclose to any third party (with the exception of attorneys, accountants or other agents with a need to know and who agree to be bound by the terms of this Agreement) or use any Confidential Information for any unauthorised purpose. 

3.3 Confidential Information shall not be used for any purpose or in any manner that would constitute a violation of any laws or regulations. 

3.4 The Receiving Party agrees that it will not (try to) access any systems and/or data outside the scope of the Purpose. 

3.5 Confidential Information shall only be disclosed to any such employee or advisors who does have a need for such information (“Permitted Person”). The Receiving Party shall monitor, enforce and be responsible for, compliance with this Agreement by Permitted persons and the Receiving Party will be liable and responsible for any breach of this Agreement by itself and/or any of the Permitted persons.

3.6 The Receiving Party agrees that it will be responsible for any breach of this Agreement by any of its employees and advisors.

 

  1.   MAINTENANCE OF CONFIDENTIALITY.

4.1 Each Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorised use of the Confidential Information of the other Party.  Without limiting the foregoing, each Party shall take at least those measures that it takes to protect its own Confidential Information. 

4.2 The Receiving Party agrees that it will not copy, reproduce or store the Confidential Information in an unprotected retrieval system or database. 

4.3 Neither Party shall make any copies of the Confidential Information of the other Party unless reasonably necessary for the Purpose or previously approved in writing by the other Party. 

 

  1.   PERSONAL DATA.

The Parties acknowledge that the Confidential Information may contain personal data and that processing of such data may be regulated by applicable legislation such as the Dutch Act on the Protection of Personal Data (Wet bescherming persoonsgegevens). Parties are aware of and shall observe the rules and regulations with regard to personal data and Parties acknowledge their own responsibility to comply with those rules and regulations.

 

  1.   DAMAGES.

6.1 Parties acknowledge that the unauthorised use or disclosure of the Confidential Information could cause irreparable harm to the Disclosing Party. Accordingly, the Parties agree that the Disclosing Party has the right to seek an immediate injunction, without bond or other security, against any breach or threatened breach of this Agreement as well as the right to pursue any and all other rights and remedies available at law or in equity for such breach or threatened breach. 

6.2 Parties agree that should the Receiving Party be found by a court of law to be in breach of this Agreement, then the Receiving Party shall reimburse the Disclosing Party for any legal or other expenses reasonably incurred by the Disclosing Party in connection with the enforcement of the Disclosing Party’s rights under this Agreement.

 

  1.   NO OBLIGATION.

Nothing herein shall obligate either Party to proceed with any negotiation between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning the Purpose without any payment or other obligation, except for possible claims arising from this Agreement.

 

  1.   NO WARRANTY.

All Confidential Information is provided “as is”. Each Party makes no warranties, express, implied or otherwise, regarding its accuracy, completeness, or performance.

 

  1. RETURN OF MATERIALS.

All documents (digital and in hardcopy) and other tangible objects containing or representing Confidential Information which have been disclosed by either Party to the other Party, and all copies thereof which are in the possession of the other Party, shall be and remain the property of the Disclosing Party and shall be promptly returned to the Disclosing Party or destroyed by the Receiving Party upon the Disclosing Party’s written request, except for copies retained for legal or regulatory purposes.

 

  1. NO LICENSE.

Nothing in this Agreement is intended to grant any (intellectual property) rights from either Party under any patent, design, data rights or copyright law to the other Party, nor shall this Agreement grant any Party any rights in or to the Confidential Information of the other Party except as expressly set forth herein.

 

  1. TERM.

11.1 This Agreement shall continue in full force and effect for so long as the Parties continue their negotiations about a potential transaction with regard to the Purpose. 

11.2 Either Party may terminate this Agreement at any time upon thirty (30) days written notice to the other Party. 

11.3 The termination of this Agreement shall not relieve either Party of the obligations imposed by clauses 4, 5, 7 and 10 of this Agreement with respect to Confidential Information disclosed prior to the effective date of such termination and the provisions of those provisions shall survive the termination of this Agreement for a period of two (2) years from the date of such termination. 

 

  1. MISCELLANEOUS.

12.1 Neither Party may assign its rights and obligations under this Agreement without the prior written consent of the other Party. 

12.2 It is further understood and agreed that the obligations in this Agreement shall bind and inure to the benefit of the parties hereto and their permitted successors and assigns. 

12.3 This Agreement shall be the entire agreement between the parties with respect to the subject matter hereof, and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other Party except as set forth herein. 

12.4 Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. 

12.5 This Agreement may not be amended, nor any obligation waived, except in writing signed by both Parties hereto. 

12.6 The Parties acknowledge and agree that this Agreement is executed in the English language.

12.7 This Agreement is governed by, and shall be construed in accordance with, Dutch law.

12.8 Parties commit themselves to always first try to solve their disputes in an amicably manner. Any dispute arising in connection with this Agreement or further agreements resulting from this Agreement, which Parties will not be able to resolve amicably, will be submitted to the exclusive jurisdiction of the court of Amsterdam, the Netherlands.