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Kingward Gan
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NONDISCLOSURE AGREEMENT
[ Author: Origin: Hit:7752 Date:2009-09-21 14:44:29 ]
NON-DISCLOSURE AGREEMENT
 
This Non-Disclosure Agreement is made effective as of this _______ day of ____________________, 20__ (the “Effective Date”) by and between   , Inc., an Oregon corporation with its principal place of business at                (“    ”) and                                 a _______________________________ corporation with its principal place of business at                                                                                      .
 
Recitals
A.       ___________________ and NIKE desire in good faith to enter into discussions regarding the possibility of becoming parties to a business transaction;
B.       ___________________ and NIKE have each accumulated trade secrets and other proprietary information, including but not limited to information relating to software, technology, product designs, material concepts, manufacturing, marketing, sales, and finances;
C.       The Parties anticipate that, during the course of such discussions, each may furnish certain proprietary or confidential information to the other and each may be exposed to or have access to proprietary or confidential information of the other;
D.       Each of the Parties is willing to exchange such information only on a confidential basis, and only for purposes of evaluating possible business relationships.
 

Agreement
 
 

1         Definitions.  Terms which are capitalized in this Agreement shall have the following meanings:
“Affiliate” means, as to either Party, any corporation or other entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that Party.
 “Agreement” means this Non-Disclosure Agreement.
“Confidential Information” means all information owned or controlled by the Discloser or its Affiliates that the Discloser makes reasonable efforts to protect from disclosure to third parties, whether Disclosed before or after the Effective Date, and regardless of the medium or media on which such information is stored, recorded, conveyed, or communicated, including but not limited to: (i) production figures; (ii) technical drawings, product designs, and unpublished product specifications; (iii) ideas for research and development; (iv) computer software (including software that is proprietary to third parties and as to which the Discloser has undertaken non-disclosure obligations to such third parties); (v) inventions whether or not patentable; (vi)  identities of customers and suppliers; (vii) human resources data and information about employees; (viii) cost, profit, and other financial data, (ix) trade secrets; and (x) any information to which the Recipient has access while on the Discloser’s business premises.
Discloser” and “Recipient.”  Each of the Parties is referred to herein as the “Discloser” with respect to any Confidential Information of that Party Disclosed by such Party to the other Party, and as “Recipient” with respect to any Confidential Information Received by such Party from the other Party, or from a third Party under circumstances suggesting that the information is not within the public domain.
Confidential Document” means any record containing or referring to Confidential Information, including but not limited to computer files, voice-mail, disks, and papers containing messages, letters, agreements, data, or notes.
Disclose” means to divulge, permit access to, or convey, whether intentionally or inadvertently.
Party” means __________________ or NIKE (referred to collectively as “the Parties.”)
Receive” means gain access to, whether through an intentional communication or transmission, or through inadvertent disclosure.
2         Permitted uses.  Both Parties agree:
(a)      Recipient shall use Discloser’s Confidential Information only for the purposes of  (i) evaluating and discussing possible business relationships between Recipient and Discloser; and (ii) if the discussions result in execution of a contract between the Parties, performing its obligations under such contract.
(b)      Recipient shall protect Discloser’s Confidential Information by using the same degree of care with respect to Confidential Information it Receives, that it would exercise with respect to its own confidential information or trade secrets, but in any event no less than a reasonable standard of care.  In particular, Recipient shall not, without Discloser’s prior written consent, (i) make Confidential Information available to or otherwise divulge such information to third parties; or (ii) copy Confidential Documents; or (iii) disassemble, reverse engineer or replicate in any way products embodying Confidential Information.
3         Exceptions.  The obligations described in Section 2 above shall not apply to information which (a) was Received by Recipient from a third party who did not violate any agreement or duty or applicable law in Disclosing such information to Recipient; (b) becomes a part of the public domain without breach of this Agreement and through no act or omission of the Recipient; (c) was independently developed by Recipient, and recorded in writing by Recipient, prior to the date of any access or exposure to Confidential Information; or (d) subject to Section 4 below, is legally required to be disclosed.
4         Orders to Disclose.  Each Party agrees that, in the event it becomes subject to a subpoena, order compelling discovery, or other order which calls for the production of Discloser’s Confidential Documents or for testimony about Confidential Information, issued by a court or other governmental body with valid jurisdiction, the Recipient shall:
a.                    immediately notify the Discloser of the terms of the subpoena or order, and of the circumstances surrounding its issuance;
b.                    consult in good faith with the Discloser regarding possible responses to the order and, if requested by Discloser, make best efforts to narrow the scope of the order, obtain a protective order from the court, or produce documents to the court under seal with appropriate instructions regarding preservation of the confidentiality of the information; and
c.                    if disclosure is required to prevent Recipient from being subjected to contempt sanctions or other penalties, to Disclose only the Confidential Information which, in the written opinion of counsel satisfactory to the Discloser, it is legally compelled to Disclose, consistent with a reasonable interpretation of the order or subpoena.
5         No License; Publicity.  Nothing in this Agreement shall be interpreted as granting a license to Recipient to use any Confidential Information for any purpose other than those stated herein, or as granting Recipient any rights to any patent, copyright, trade secret or trademark.  Neither Party acquires any intellectual property rights of the other under this Agreement.  Neither Party shall (i) use the name, assumed business name, trade name, logo, trademark, or service mark, whether registered or not, of the other Party or of any Affiliate of the other Party, in connection with publicity, advertisements, promotion or in any other connection, or (ii) identify the other Party in any manner on a customer list or web site.
6         Agents and Employees.  Recipient shall instruct any employee, agent, or representative of Recipient who may, in the course of conducting Recipient’s business, have access to Discloser’s Confidential Information, to refrain from divulging such information to any third person and to use such information only for the purposes authorized in Section 2(a) of this Agreement, it being understood that the Recipient shall be responsible for any use or Disclosure of Confidential Information by the Recipient’s employees, agents or representatives that is not permitted pursuant to Section 2 of this Agreement.
7         Execution of Contract.  Nothing in this Agreement shall be construed as creating, on the part of either Party, a legal obligation to purchase or license any products or technology, or acquire any services, from the other.
8         Return of Confidential Documents.  Upon termination of the business discussions between the Parties or, if the Parties execute a contract for products or services, then upon expiration or termination of such contract, or earlier if requested by Discloser, Recipient shall (i) return to Discloser every copy of Confidential Documents and all tangible material embodying or containing Confidential Information; or (ii) destroy every copy of Confidential Documents and all tangible material embodying or containing Confidential Information and deliver to Discloser a written statement signed by Recipient certifying same within five days.
9         Specific Performance.  Both Parties hereby acknowledge that, in the event of a material breach of this Agreement by Recipient with respect to any of Discloser’s Confidential Information, Discloser would be substantially or irreparably harmed, and that such harm may not be susceptible to accurate measurement.  Accordingly, Discloser, in addition to seeking recovery of money damages and other remedies available at law to compensate for a breach, shall be entitled to seek and obtain an injunction or other equitable relief to prevent a breach or threatened breach, without the requirement of posting a bond. 
10      Amendment; Waiver.  This Agreement may be modified only by written instrument signed by authorized representatives of both Parties.  The failure of either Party on any occasion to exercise any right granted hereunder shall not operate as a waiver of such right as to subsequent occasions, and shall not effect a modification of this Agreement.
11      Competition.  Nothing in this Agreement shall be construed as prohibiting either Party from entering into discussions or business relationships with any competitor of the other Party.
12      No Agency.  This Agreement does not create any agency, partnership, or joint venture between the Parties.  Neither Party is authorized to represent the other Party in any capacity, bind the other Party to any obligation, or act on the other Party’s behalf.
13      Term; Survival.  This Agreement shall remain in effect from the Effective Date specified above until terminated by either Party upon written notice to the other.  As to Confidential Information Received prior to the date of termination, the obligations of the Parties shall survive for five years from the Effective Date of this Agreement or the date any Confidential Information was Received, whichever is later, and the obligations of the Parties shall survive indefinitely with respect to any Confidential Information constituting a protectible trade secret under applicable law.
14      Choice of Law/ Forum Selection.  This Agreement shall be interpreted under, and any dispute arising under this Agreement, shall be governed by, the laws of the state of Oregon.  Any legal action arising out of or relating to such a dispute shall be brought in the federal or state courts of Oregon, and both parties irrevocably consent to the exclusive jurisdiction of such courts.
15      Attorney Fees.  In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorney fees, as determined by the court.
16      Misc.  This Agreement is binding upon and inures to the benefit of the parties and to their successors and assigns.  This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes and replaces any and all prior and contemporaneous agreements with respect to its subject matter between the parties, whether written or oral. 

 
 
 
 

The Parties have caused this Agreement to be executed and each individual whose signature appears below warrants that he/she is duly authorized to execute this Agreement on behalf of the Party he or she represents.
 
 
, INC.                                                    __________________              
 
By:_____________________                                    By:_____________________
Title:___________________                                      Title:____________________
Date:_________________                                Date:____________________

 
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