MUTUAL NON-DISCLOSURE AGREEMENT

(“Agreement”)

[// GUIDANCE: This template follows a robust architecture suitable for most commercial transactions. Customize bracketed placeholders and optional provisions to match the specific deal history, industry, and governing-law election.]

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Operative Provisions
4. Representations & Warranties
5. Covenants & Restrictions
6. Default & Remedies
7. Risk Allocation
8. Dispute Resolution
9. General Provisions
10. Execution Block

1. DOCUMENT HEADER

1.1 Parties. This Mutual Non-Disclosure Agreement (the “Agreement”) is entered into as of [Effective Date] (the “Effective Date”) by and between:

(a) [Full Legal Name of Party A], a [Jurisdiction & Entity Type], having a principal place of business at [Address] (“Party A”); and
(b) [Full Legal Name of Party B], a [Jurisdiction & Entity Type], having a principal place of business at [Address] (“Party B”, and together with Party A, each a “Party” and collectively, the “Parties”).

1.2 Recitals.
WHEREAS, each Party possesses certain proprietary or confidential information and desires to disclose such information to the other Party solely for the purpose of [describe transaction/project] (the “Permitted Purpose”); and
WHEREAS, the Parties wish to protect the confidentiality of such information in accordance with the terms set forth herein and in consideration of the mutual promises contained herein;

NOW, THEREFORE, the Parties agree as follows:

2. DEFINITIONS

For purposes of this Agreement, capitalized terms have the meanings set out below:

“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party.

“Confidential Information” means all non-public, proprietary, or confidential data or information disclosed by a Disclosing Party to a Receiving Party, in any form, whether oral, written, electronic, visual, or otherwise, that is identified as confidential or that a reasonable person should understand to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes Trade Secrets.

“Disclosing Party” means the Party (or its Affiliate) disclosing Confidential Information.

“Receiving Party” means the Party (or its Affiliate) receiving Confidential Information.

“Representatives” means a Party’s and its Affiliates’ directors, officers, employees, agents, consultants, advisors, and potential financing sources who have a legitimate need to know the Confidential Information for the Permitted Purpose.

“Trade Secret” means information that derives independent economic value from not being generally known to, and not being readily ascertainable by proper means by, other persons and is subject to reasonable efforts to maintain its secrecy, as contemplated under 18 U.S.C. § 1836, et seq.

[// GUIDANCE: Add additional defined terms (e.g., “Evaluation Material”, “Residuals”) as transaction-specific needs dictate.]

3. OPERATIVE PROVISIONS

3.1 Confidentiality Obligations. The Receiving Party shall:
(a) hold all Confidential Information in strict confidence using at least the degree of care it employs to protect its own information of similar sensitivity, and in no event less than a commercially reasonable degree of care;
(b) use the Confidential Information solely for the Permitted Purpose;
(c) restrict disclosure of Confidential Information only to its Representatives who need to know such information for the Permitted Purpose and who are bound by confidentiality obligations no less restrictive than those contained herein; and
(d) be liable for any breach of this Agreement by its Representatives.

3.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by contemporaneous written records:
(a) is or becomes publicly available through no breach of this Agreement;
(b) is received from a third party without breach of any confidentiality obligation;
(c) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or
(d) is approved in writing for release by the Disclosing Party.

3.3 Mandatory Disclosures. If the Receiving Party is compelled by law, regulation, or court order to disclose Confidential Information, it shall, to the extent legally permissible, provide the Disclosing Party with prompt written notice to permit the Disclosing Party to seek a protective order or other appropriate remedy. The Receiving Party shall disclose only that portion of Confidential Information legally required and shall use reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.

3.4 Return or Destruction. Upon the earlier of (i) written request by the Disclosing Party or (ii) termination of this Agreement, the Receiving Party shall promptly return or destroy (at Disclosing Party’s election) all Confidential Information and all copies, summaries, and extracts thereof, except that the Receiving Party may retain one (1) archival copy for compliance purposes and any electronically stored Confidential Information created pursuant to routine backup procedures, provided such retained materials remain subject to this Agreement.

3.5 No License. All Confidential Information remains the property of the Disclosing Party. No license, express or implied, under any patent, copyright, trademark, Trade Secret, or other intellectual-property right is granted to the Receiving Party by this Agreement.

3.6 Term. The obligations of confidentiality and non-use contained herein shall commence on the Effective Date and, with respect to Confidential Information that does not qualify as a Trade Secret, survive for [three (3)] years after termination or expiration of this Agreement. Trade Secret obligations survive so long as the information remains a Trade Secret under applicable law.

4. REPRESENTATIONS & WARRANTIES

4.1 Authority. Each Party represents and warrants that:
(a) it has full corporate power and authority to execute, deliver, and perform this Agreement;
(b) its execution and performance of this Agreement will not violate any other agreement by which it is bound.

4.2 No Warranty as to Information. CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

4.3 Survival. The representations and warranties in Sections 4.1 and 4.2 shall survive the termination or expiration of this Agreement.

5. COVENANTS & RESTRICTIONS

5.1 Prohibited Actions. The Receiving Party shall not (and shall cause its Representatives not to):
(a) decompile, disassemble, reverse-engineer, or otherwise attempt to derive the composition or underlying information of any Trade Secret, except to the extent expressly permitted by applicable law notwithstanding a contractual prohibition;
(b) remove, obscure, or deface any confidentiality or proprietary notices.

5.2 Notice of Unauthorized Use. The Receiving Party shall immediately notify the Disclosing Party in writing upon discovery of any unauthorized use or disclosure of Confidential Information and shall cooperate with the Disclosing Party to regain possession of such information and prevent further unauthorized use.

5.3 Compliance with Law. Each Party shall comply with all applicable export control, data-privacy, and sanctions laws in connection with the receipt, storage, and use of Confidential Information.

6. DEFAULT & REMEDIES

6.1 Events of Default. Any breach of Sections 3 or 5 constitutes an “Event of Default.”

6.2 Cure Period. Upon written notice of an Event of Default, the defaulting Party shall have [five (5)] business days to cure, if the breach is capable of cure; provided, however, that unauthorized disclosure of Trade Secrets or other irreparable harm is deemed incapable of adequate cure.

6.3 Injunctive Relief. The Parties acknowledge and agree that a breach or threatened breach of this Agreement would cause irreparable harm for which monetary damages are an inadequate remedy. Accordingly, in the event of any such breach or threatened breach, the non-breaching Party shall be entitled to seek equitable relief, including temporary, preliminary, and permanent injunctive relief and specific performance, without the necessity of posting bond or proving actual damages, in addition to all other remedies available at law or in equity.

6.4 Damages & Costs. Subject to Section 7.1 (no liability cap), the non-breaching Party may recover actual damages, including reasonable attorneys’ fees and costs incurred in enforcing this Agreement.

[// GUIDANCE: Consider whether to include liquidated-damage provisions for specific industries (e.g., licensed software) where quantifying loss is difficult.]

7. RISK ALLOCATION

7.1 Limitation of Liability. NO LIABILITY CAP. The Parties expressly agree that NO limitation of liability applies; each Party remains liable to the other for all damages and remedies allowable under applicable law.

7.2 No Indemnification. The Parties agree that this Agreement does not create any indemnification obligations.

7.3 Force Majeure. Neither Party shall be liable for any failure or delay in performance (other than payment obligations, if any) to the extent caused by events beyond its reasonable control, including acts of God, natural disasters, war, terrorism, civil unrest, labor disputes, governmental action, or utility failures, provided the affected Party uses diligent efforts to resume performance.

8. DISPUTE RESOLUTION

8.1 Governing Law. This Agreement and all disputes arising out of or relating hereto shall be governed by and construed in accordance with the laws of the [Chosen State/Country], without regard to its conflict-of-laws principles.

8.2 Arbitration. Except for actions seeking injunctive relief under Section 6.3, any dispute, controversy, or claim arising out of or relating to this Agreement shall be finally settled by binding arbitration administered by [American Arbitration Association (“AAA”) / other institution] under its [Commercial Arbitration Rules] in effect at the time of filing. The arbitration shall be conducted by a single neutral arbitrator in [City, State] and the proceedings and award shall be confidential. Judgment on the award may be entered in any court having jurisdiction thereof.

8.3 Exclusive Forum for Injunctive Relief. For purposes of obtaining injunctive relief under Section 6.3, each Party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in [County, State] and waives any objection to venue or forum non conveniens.

8.4 Jury Waiver. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.

9. GENERAL PROVISIONS

9.1 Amendment; Waiver. No amendment or modification of this Agreement is valid unless in writing and signed by authorized representatives of both Parties. No waiver of any breach is deemed a waiver of any other breach.

9.2 Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the prior written consent of the other Party, except that either Party may assign this Agreement without such consent to a successor in interest in connection with a merger, acquisition, or sale of substantially all of its assets; provided the assignee agrees in writing to be bound by this Agreement. Any prohibited assignment is void.

9.3 Successors & Assigns. This Agreement binds and benefits the Parties and their respective permitted successors and assigns.

9.4 Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions remain in full force, and the invalid provision shall be reformed to the minimum extent necessary to render it valid and enforceable.

9.5 Integration. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements or understandings. Each Party acknowledges that it has not relied on any statement or promise not expressly contained herein.

9.6 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which is deemed an original and all of which together constitute one instrument. Signatures transmitted by electronic means (including PDF and reliable e-signature platforms) are deemed original signatures.

9.7 Notice. All notices must be in writing and delivered by personal delivery, nationally recognized overnight courier, certified mail (return receipt requested), or email (with confirmation of receipt), to the addresses set forth below (or as updated by written notice). Notice is effective (a) upon receipt if delivered personally, (b) one business day after deposit with an overnight courier, (c) three business days after deposit with the postal service, or (d) upon confirmed receipt of email (excluding automated responses).

10. EXECUTION BLOCK

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

[// GUIDANCE:
1. Confirm signatory authority (e.g., board resolution, delegated authority).
2. Insert additional signature blocks for Affiliates if they will exchange Confidential Information.
3. Jurisdictions such as New York generally do not require notarization or witnesses for NDAs; verify local requirements if using as a deed or in civil-law jurisdictions.]

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