The parties are engaged in discussions and/or activities that may involve disclosure of confidential information, and in consideration of the mutual covenants herein, the parties agree, as of {dateSigned} the date signed by the parties ("Effective Date"), as follows:
1. The parties to this MNDA are {companyName}, on behalf of itself and its controlled affiliates whose principal place of business is located at {address}, {city}, {state}, {zip}, (hereafter referred to as {companyName}) and between {companyName15}, on behalf of itself and its controlled affiliates whose principal place of business is located at {address35}, {city37}, {state38}, {zip39}, (hereafter referred to as {companyName15}).
2. "Confidential Information" shall mean any non-public business, product, marketing, technical, scientific, financial or other information disclosed in relation to the Activities, including without limitation any specifications, designs, plans, drawings, roadmaps, software, prototypes or process techniques, and trade secrets and any other nonpublic intellectual property, that at the time of disclosure, is designated as confidential (or like designation), is disclosed under circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential.
For the avoidance of doubt, the identity of the parties and the fact that the parties are in contact with each other shall be deemed Confidential Information.
3. A party receiving Confidential Information under this MNDA ("Recipient") shall use the Confidential Information disclosed by the other party (the disclosing party being the "Discloser" and the disclosed Confidential Information being the "Discloser CI") only for the purposes of the following ("Activities"):
Business and technical discussions and other exchanges of information between the parties related to the supply of products and/or services by one party to the other.
4. This MNDA shall commence on the Effective Date, shall continue for an initial two (2) year term, and shall renew automatically thereafter for additional one (1) year terms. Either party may terminate this MNDA, with or without cause, by providing ten (10) business days prior written notice to that effect to the other party.
Independent of any termination, upon ten (10) days written request by Discloser, Recipient shall return all Discloser CI to Discloser, or shall provide written confirmation of its destruction. Notwithstanding the foregoing, Recipient may make and retain one copy of the Discloser CI for archival purposes only, subject to the provisions of this MNDA. Recipient agrees that all of its obligations with respect to Discloser CI during the term shall survive termination.
5. For a period of five (5) years from the date of each disclosure of Discloser CI (except for trade secrets which will be subject to this MNDA for an indefinite period, subject to Section 6 below), Recipient shall
(i) keep Discloser CI in confidence;
(ii) disclose it only to directors, officers, employees, and financial and legal advisors of the Recipient with a need to know and who are under similar confidentiality restrictions as contained in this MNDA and reproduce it only to the extent necessary for the Activities; and
(iii) protect Discloser CI with at least the same degree of care as it normally exercises to protect its own confidential information of a similar nature, but no less than a reasonable degree of care.
Recipient shall not reverse engineer, disassemble or decompile any samples, prototypes, software or other tangible objects provided by Discloser hereunder except with the express written authorization from Discloser.
The parties shall be liable for any breach of this MNDA by their respective directors, officers, employees, and financial and legal advisors. The Recipient shall not record any information in a visualizing or acoustical form (e.g. photographs, film or video footage, audio tapes, etc.), or prepare any sketches and/or drawings of any equipment, facilities, products, processes, and/or other Discloser CI, or remove any production and material samples, without the prior written consent of Discloser.
6. Recipient will not be liable for use or disclosure of any Discloser CI that Recipient can conclusively establish by its written records,
(i) was known by the Recipient prior to disclosure by Discloser; or
(ii) is lawfully received free of restriction from another source having the right to so furnish such Discloser CI; or
(iii) is independently developed by or for the Recipient without reference to or use of Discloser CI; or
(iv) is or becomes lawfully in the public domain other than through a breach of a duty or obligation to Discloser; or
(v) is intentionally disclosed by the Discloser to a third party without a duty of confidentiality on such third party.
The Recipient may make disclosures of Discloser CI to the extent required or compelled by law to be disclosed, provided that the Recipient gives all reasonable prior notice to the Discloser to allow it to seek protective or other court orders.
7. No license is either granted or implied by the conveying of Discloser CI to the Recipient. All Discloser CI is provided on a without prejudice basis, ‘as is’ and shall remain the sole property of the Discloser. Recipient agrees that this MNDA, or any disclosure hereunder, does not
(i) create a sufficient proprietary interest on the part of the Recipient in any Discloser CI that would enable the Recipient to file a patent application incorporating such Discloser CI; and/or
(ii) empower Recipient to assert, for any Discloser CI, either sufficient proprietary interest or any capacity as an agent for the inventor, on which Recipient could seek to file a patent application for an invention incorporating, or deriving from, any Discloser CI.
The use of a copyright notice on any Discloser CI shall not be taken to indicate that it has been published. None of the Discloser CI shall constitute any representation, warranty, assurance, guarantee or inducement by Discloser of any kind, and, in particular, with respect to the noninfringement of any intellectual property rights, or other rights of third parties or the Discloser.
This MNDA shall not be construed as an assignment or an obligation to assign any Discloser CI to Recipient. Nothing in this MNDA obligates the Discloser to make any particular disclosure, to continue the discussions, to release or purchase any products or services, or to enter into a business relationship with Recipient of any kind. Discloser shall have no liability whatsoever from the use of its Discloser CI by Recipient.
8. Recipient agrees that any violation or threat of violation hereof will result in irreparable harm to Discloser for which damages would be an inadequate remedy and therefore in addition to its rights and remedies otherwise available at law, Discloser may seek equitable and administrative relief as a court or administrative authority may deem proper, including injunctions, to prevent any unauthorized use or disclosure. The failure of either party to enforce its rights under this MNDA at any time for any period shall not be construed as a waiver of such rights.
9. Recipient shall adhere to all applicable export laws and regulations and shall not export or re-export or otherwise transmit, directly or indirectly, any technical data necessary for the development, production or use of a product, or the direct product of such technical data, except with the applicable government export approvals or permits. This MNDA shall be governed by the applicable laws of the State of Texas, excluding its conflict of law provisions.
This MNDA constitutes the entire understanding between the parties hereto as to the Confidential Information and merges all prior discussions between them relating thereto. A scanned copy or facsimile of the original signed MNDA shall have the same force and effect as the original document. No amendment or modification of this MNDA shall be valid or binding on the parties unless made in writing and signed by the parties’ respective duly authorized representatives.