Mutual Non-Disclosure Agreement

This Mutual Non-Disclosure Agreement (this “agreement”), dated [●], is between [Party A], a [State] [entity type] (“[Party A]”), and [Party B], a [State] [entity type] (“[Party B]”). [Party A] and [Party B] are each a “Party” and together the “Parties.” In disclosing Confidential Information a Party acts as the “Discloser,” and in receiving it a Party acts as the “Recipient.”

Background

The Parties wish to evaluate and negotiate a potential business relationship and, for that purpose, each may disclose Confidential Information to the other. This agreement states the terms governing that disclosure.

1. Definitions

1.1 “Confidential Information” is defined in Section 2.

1.2 “Purpose” means the Parties’ evaluation and negotiation of a potential business relationship between them.

1.3 “Representatives” means, for a Party, its affiliates and the directors, officers, employees, agents, and professional advisors of the Party and its affiliates.

1.4 “Trade secret” means information that qualifies as a trade secret under the Defend Trade Secrets Act of 2016 or other applicable law.

2. Confidential Information

2.1 Confidential Information means information that the Discloser discloses to the Recipient in connection with the Purpose and that either:

(a) is marked or otherwise identified as confidential when disclosed; or

(b) a reasonable person would understand to be confidential given its nature or the circumstances of disclosure.

2.2 The Discloser may disclose Confidential Information in any form, including in writing, orally, visually, electronically, or by inspection of tangible objects, and whether before or after the date of this agreement.

2.3 Confidential Information includes the existence and terms of this agreement and the fact that the Parties are in discussions.

3. Exclusions

3.1 Confidential Information does not include information that the Recipient demonstrates:

(a) was publicly available when disclosed, or later becomes publicly available other than through the Recipient’s breach of this agreement;

(b) the Recipient lawfully possessed, free of any confidentiality obligation, before the Discloser disclosed it;

(d) the Recipient independently develops without using or referring to the Confidential Information.

4. Obligations of the Recipient

4.1 The Recipient shall use Confidential Information solely for the Purpose.

4.2 The Recipient shall not disclose Confidential Information except as Sections 5 and 6 permit.

4.3 The Recipient shall protect Confidential Information using at least the degree of care it uses to protect its own confidential information of similar importance, and in no event less than reasonable care.

4.4 Notice of unauthorized disclosure. The Recipient shall notify the Discloser promptly after becoming aware of any unauthorized use or disclosure of Confidential Information and shall cooperate with the Discloser to mitigate it.

5. Representatives

5.1 The Recipient may disclose Confidential Information to its Representatives who need it for the Purpose, but only to a Representative who is bound by confidentiality obligations at least as protective as those in this agreement.

5.2 The Recipient is responsible for any act or omission of its Representatives that would breach this agreement if the Representative were a party to it.

6. Permitted Disclosures

6.1 The Recipient may disclose Confidential Information as Section 5 and this Section 6 permit.

6.2 Compelled disclosure. If law, regulation, or legal process requires the Recipient to disclose Confidential Information, the Recipient:

(a) shall, to the extent the law permits, notify the Discloser promptly so that the Discloser may seek a protective order or other remedy;

(b) shall reasonably cooperate with the Discloser, at the Discloser’s expense, in seeking that protection; and

7. Term and Restricted Period

7.1 Term. This agreement begins on its date and continues for two years, unless a Party terminates it earlier by giving the other 30 days’ written notice.

7.2 Effect of expiration or termination. Expiration or termination does not affect Confidential Information disclosed before it. The Recipient’s obligations as to that Confidential Information continue for the Restricted Period.

7.3 Restricted Period.

(a) For Confidential Information that is not a trade secret, the Recipient’s obligations under this agreement continue for three years after the disclosure of that Confidential Information.

(b) For Confidential Information that is a trade secret, the Recipient’s obligations continue for as long as the information remains a trade secret under applicable law.

8. Return or Destruction of Materials

8.1 On the Discloser’s written request, or on expiration or termination of this agreement, the Recipient shall promptly return or destroy all Confidential Information in its possession or control and, if the Discloser asks, certify the destruction in writing.

8.2 The Recipient may retain copies that it is required to retain by law or that its routine automatic electronic backup systems create. Retained copies remain subject to this agreement for as long as the Recipient keeps them.

9. No License or Other Rights

9.1 The Discloser retains all right, title, and interest in its Confidential Information. This agreement grants the Recipient no license or other right in the Confidential Information, by implication or otherwise, except the limited right to use it for the Purpose.

9.2 This agreement does not obligate either Party to disclose any information, to proceed with any transaction, or to enter into any further agreement.

10. No Representations

10.1 Each Party provides its Confidential Information “as is.” Neither Party makes any representation about the accuracy or completeness of its Confidential Information.

11. Remedies

11.1 The Recipient acknowledges that a breach of this agreement may cause the Discloser irreparable harm for which damages are an inadequate remedy. The Discloser may therefore seek injunctive relief, in addition to any other remedy available to it, without posting a bond.

11.2 Trade secret immunity notice. Under 18 U.S.C. § 1833(b), an individual is not held criminally or civilly liable under any federal or state trade secret law for disclosing a trade secret that:

(a) is made in confidence to a federal, state, or local government official, directly or indirectly, or to an attorney, solely to report or investigate a suspected violation of law; or

(b) is made in a complaint or other document filed under seal in a lawsuit or other proceeding.

An individual who sues an employer for retaliation for reporting a suspected violation of law may disclose the employer’s trade secret to the individual’s attorney and use it in the proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret except under court order.

12. Survival

12.1 Sections 4 through 12 and Section 13 survive expiration or termination of this agreement, in each case for as long as the relevant Confidential Information remains protected under Section 7.3.

13. General Provisions

13.1 Governing law. The law of [State], excluding its conflict-of-laws rules, governs this agreement.

13.2 Entire agreement. This agreement is the Parties’ entire agreement about its subject matter and supersedes all prior understandings about that subject matter.

13.3 Amendment. An amendment to this agreement is effective only if it is in writing and signed by both Parties.

13.4 No waiver. A Party’s failure or delay in exercising a right under this agreement does not waive it. A waiver is effective only if it is in writing and signed by the waiving Party.

13.5 Assignment. Neither Party may assign this agreement without the other’s prior written consent, except to a successor in a merger or a sale of all or substantially all of its assets.

13.6 Notices. A notice under this agreement must be in writing and is effective when delivered to the address stated on the signature page.

13.7 Counterparts. The Parties may sign this agreement in counterparts, including by electronic signature, each of which is an original and all of which form one agreement.

13.8 Severability. If a provision of this agreement is unenforceable, the rest remains in effect, and the Parties shall replace the unenforceable provision with an enforceable one that best reflects their intent.

13.9 No third-party beneficiaries. This agreement confers no right on any person other than the Parties.

The Parties are signing this agreement as of its date.

[PARTY A]

By: ______________________________

Name:

Title:

Address for notices:

[PARTY B]