Mutual Non-Disclosure Agreement (New Hampshire)

MUTUAL NON-DISCLOSURE AGREEMENT

(New Hampshire)

Effective Date: [__/__/____] (the "Effective Date")

PARTIES

Party A (First Disclosing/Receiving Party):

Party B (Second Disclosing/Receiving Party):

Party A and Party B are each referred to individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, each Party possesses certain proprietary, confidential, and trade secret information relating to its business, operations, technology, products, services, customers, and finances;

WHEREAS, the Parties desire to explore and/or engage in a potential business relationship involving [________________________________] (the "Purpose");

WHEREAS, in connection with the Purpose, each Party may disclose to the other Party certain Confidential Information (as defined below) that the Disclosing Party considers proprietary and confidential;

WHEREAS, the Parties wish to establish the terms and conditions under which such Confidential Information will be disclosed and protected, in accordance with the New Hampshire Uniform Trade Secrets Act, N.H. RSA 350-B:1 et seq., and the federal Defend Trade Secrets Act of 2016, 18 U.S.C. 1836 et seq.; and

WHEREAS, the Parties acknowledge that unauthorized disclosure or use of Confidential Information would cause irreparable harm to the Disclosing Party;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE 1. DEFINITIONS

1.1 "Affiliate" means any entity that, directly or indirectly, controls, is controlled by, or is under common control with a Party, where "control" means ownership of fifty percent (50%) or more of the voting securities or equivalent ownership interest.

1.2 "Confidential Information" means all non-public, proprietary, or confidential information disclosed by the Disclosing Party to the Receiving Party, whether in oral, written, electronic, visual, or tangible form, including without limitation:

(a) Trade secrets as defined under N.H. RSA 350-B:1(IV) and 18 U.S.C. 1839(3);

(b) Business plans, strategies, forecasts, projections, and financial information;

(c) Customer and supplier lists, pricing data, and sales information;

(d) Product designs, specifications, formulas, algorithms, and source code;

(e) Manufacturing processes, methods, techniques, and know-how;

(f) Research and development activities, inventions, and discoveries;

(g) Marketing plans, competitive analyses, and market studies;

(h) Personnel information, organizational structures, and compensation data;

(i) Contract terms, negotiation strategies, and legal matters;

(j) Technical data, engineering drawings, and prototypes; and

(k) Any information identified or marked as "Confidential," "Proprietary," or with a similar designation.

Confidential Information also includes the existence and terms of this Agreement, the fact that discussions or negotiations are taking place between the Parties, and any analyses, compilations, notes, studies, or other materials prepared by the Receiving Party that contain, reflect, or are derived from Confidential Information.

1.3 "Disclosing Party" means the Party (or its Affiliate) disclosing Confidential Information under this Agreement.

1.4 "Receiving Party" means the Party (or its Affiliate) receiving Confidential Information under this Agreement.

1.5 "Representatives" means a Party's and its Affiliates' directors, officers, employees, agents, attorneys, accountants, financial advisors, consultants, and other professional advisors who have a need to know Confidential Information for the Purpose and who are bound by confidentiality obligations no less restrictive than those set forth in this Agreement.

1.6 "Trade Secret" means information that meets the definition set forth in N.H. RSA 350-B:1(IV) (i.e., information that derives independent economic value from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and is the subject of efforts reasonable under the circumstances to maintain its secrecy), and/or 18 U.S.C. 1839(3).

ARTICLE 2. PURPOSE

2.1 The Parties shall use Confidential Information solely for the Purpose described in the Recitals, which involves: [________________________________].

2.2 Neither Party shall use the other Party's Confidential Information for any purpose other than the Purpose without the prior written consent of the Disclosing Party.

ARTICLE 3. OBLIGATIONS OF THE RECEIVING PARTY

3.1 Standard of Care. The Receiving Party shall:

(a) Hold all Confidential Information in strict confidence;

(b) Protect the Confidential Information using at least the same degree of care it uses to protect its own confidential information of similar nature and importance, but in no event less than a commercially reasonable degree of care;

(c) Not disclose Confidential Information to any person or entity other than its Representatives who have a need to know such information for the Purpose;

(d) Ensure that all Representatives who receive Confidential Information are informed of its confidential nature and are bound by written confidentiality obligations no less restrictive than those contained in this Agreement;

(e) Not use Confidential Information for any purpose other than the Purpose;

(f) Not copy or reproduce Confidential Information except as reasonably necessary for the Purpose; and

(g) Not reverse engineer, decompile, or disassemble any Confidential Information, including any products, prototypes, software, or other tangible objects provided by the Disclosing Party.

3.2 Responsibility for Representatives. Each Party shall be responsible for any breach of this Agreement by any of its Representatives and shall, at its sole cost and expense, take all reasonable measures to restrain its Representatives from unauthorized disclosure or use of Confidential Information.

3.3 Security Measures. The Receiving Party shall implement and maintain reasonable administrative, technical, and physical safeguards to protect the confidentiality of the Disclosing Party's Confidential Information, including measures to prevent unauthorized access, use, modification, or disclosure.

3.4 Notification of Breach. The Receiving Party shall promptly notify the Disclosing Party in writing upon discovery of any unauthorized use, disclosure, or loss of Confidential Information, and shall cooperate with the Disclosing Party to mitigate any damage resulting from such breach.

ARTICLE 4. EXCLUSIONS FROM CONFIDENTIAL INFORMATION

4.1 Confidential Information shall not include information that the Receiving Party can demonstrate by competent evidence:

(a) Was publicly available or in the public domain at the time of disclosure through no fault of the Receiving Party;

(b) Becomes publicly available or enters the public domain after disclosure through no breach of this Agreement by the Receiving Party or its Representatives;

(c) Was already in the Receiving Party's possession without restriction before disclosure by the Disclosing Party, as demonstrated by the Receiving Party's contemporaneous written records;

(d) Is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information, as demonstrated by the Receiving Party's contemporaneous written records;

(e) Is received by the Receiving Party from a third party who is not, to the Receiving Party's knowledge, under an obligation of confidentiality to the Disclosing Party with respect to such information; or

(f) Is approved for release or use in writing by an authorized representative of the Disclosing Party.

4.2 The burden of proving any exclusion rests with the Receiving Party. A specific item of Confidential Information shall not be deemed to fall within any of the foregoing exclusions merely because it is embraced by more general information in the public domain or in the Receiving Party's possession.

ARTICLE 5. PERMITTED DISCLOSURES (COMPELLED DISCLOSURE)

5.1 Legal Compulsion. If the Receiving Party or any of its Representatives becomes legally compelled (by deposition, interrogatories, subpoena, civil investigative demand, court order, regulatory request, or similar process) to disclose any Confidential Information, the Receiving Party shall:

(a) Provide the Disclosing Party with prompt written notice of such requirement (to the extent legally permissible) so that the Disclosing Party may seek a protective order, injunction, or other appropriate remedy, or waive compliance with the terms of this Agreement;

(b) Cooperate reasonably with the Disclosing Party in its efforts to obtain such protective order or other remedy;

(c) If such protective order or other remedy is not obtained, disclose only that portion of the Confidential Information that is legally required to be disclosed, as advised by the Receiving Party's legal counsel; and

(d) Use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be afforded to the Confidential Information so disclosed.

5.2 DTSA Whistleblower Immunity. In accordance with the Defend Trade Secrets Act, 18 U.S.C. 1833(b), nothing in this Agreement shall prevent either Party or its Representatives from disclosing a trade secret in confidence to a federal, state, or local government official, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law, or in a court filing made under seal.

ARTICLE 6. TERM OF AGREEMENT AND SURVIVAL OF OBLIGATIONS

6.1 Term. This Agreement shall commence on the Effective Date and shall continue for a period of [________________________________] years (the "Term"), unless earlier terminated by either Party upon thirty (30) days' prior written notice to the other Party.

6.2 Survival of Obligations. The obligations of confidentiality and non-use set forth in this Agreement shall survive the expiration or termination of this Agreement for a period of [________________________________] years following such expiration or termination; provided, however, that obligations with respect to Trade Secrets (as defined by N.H. RSA 350-B:1(IV) and 18 U.S.C. 1839(3)) shall continue for so long as the information qualifies as a Trade Secret under applicable law.

ARTICLE 7. RETURN AND DESTRUCTION OF MATERIALS

7.1 Return or Destruction. Upon the earlier of (i) the Disclosing Party's written request, or (ii) the expiration or termination of this Agreement, the Receiving Party shall promptly:

(a) Return to the Disclosing Party all originals and copies of Confidential Information in any form (written, electronic, or otherwise); or

(b) Destroy all originals and copies of Confidential Information in any form, using methods appropriate to permanently eliminate the information (e.g., shredding for paper documents, secure deletion for electronic files).

7.2 Certification. Upon request, the Receiving Party shall provide the Disclosing Party with a written certification signed by an authorized officer confirming that all Confidential Information has been returned or destroyed in accordance with this Section.

7.3 Retained Copies. Notwithstanding the foregoing, the Receiving Party may retain (i) one archival copy of Confidential Information solely for compliance, legal, or regulatory purposes, and (ii) any Confidential Information contained in automated electronic backup systems, provided that all retained copies remain subject to the confidentiality and non-use obligations of this Agreement for the duration set forth in Article 6.

ARTICLE 8. NO LICENSE OR WARRANTY

8.1 No License. Nothing in this Agreement grants the Receiving Party any license, right, title, or interest in or to the Disclosing Party's Confidential Information, intellectual property, patents, copyrights, trademarks, trade secrets, or other proprietary rights, whether by implication, estoppel, or otherwise.

8.2 No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, OR NON-INFRINGEMENT. THE DISCLOSING PARTY SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE RECEIVING PARTY'S USE OF OR RELIANCE UPON THE CONFIDENTIAL INFORMATION.

ARTICLE 9. REMEDIES

9.1 Irreparable Harm. Each Party acknowledges that a breach or threatened breach of this Agreement would cause the Disclosing Party irreparable harm for which monetary damages would be an inadequate remedy, as recognized under N.H. RSA 350-B:3 (providing for injunctive relief to prevent or restrain actual or threatened misappropriation of trade secrets).

9.2 Injunctive Relief. In the event of a breach or threatened breach, the Disclosing Party shall be entitled to seek injunctive relief, specific performance, and other equitable remedies from any court of competent jurisdiction without the necessity of proving actual damages, posting a bond, or furnishing any other security, in addition to all other remedies available at law or in equity.

9.3 Monetary Damages. The Disclosing Party shall be entitled to recover actual damages caused by the misappropriation of Confidential Information, including any unjust enrichment not addressed by the actual damages award, pursuant to N.H. RSA 350-B:4 and 18 U.S.C. 1836(b)(3)(B).

9.4 Exemplary Damages. If willful and malicious misappropriation is established, the court may award exemplary damages in an amount not exceeding twice the damages awarded under Section 9.3, pursuant to N.H. RSA 350-B:4.

9.5 Attorneys' Fees. If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists, the court may award reasonable attorneys' fees to the prevailing party pursuant to N.H. RSA 350-B:5.

9.6 Cumulative Remedies. All remedies under this Agreement are cumulative and not exclusive. The exercise of any remedy shall not preclude the exercise of any other remedy available at law, in equity, or under statute, including claims under 18 U.S.C. 1836 et seq.

ARTICLE 10. NO OBLIGATION TO PROCEED

10.1 Nothing in this Agreement shall obligate either Party to: (a) enter into any further agreement; (b) proceed with any business transaction or relationship; (c) disclose any particular Confidential Information; or (d) purchase or license any products, services, or technology.

10.2 Each Party reserves the right to terminate discussions relating to the Purpose at any time, for any reason or no reason, without liability to the other Party.

ARTICLE 11. RESIDUALS

11.1 Nothing in this Agreement shall restrict either Party from using "Residuals" resulting from access to the other Party's Confidential Information, provided that such use does not constitute misappropriation of a Trade Secret under applicable law. "Residuals" means general ideas, concepts, know-how, methodologies, techniques, or experience retained in the unaided memory of individuals who have had access to the Disclosing Party's Confidential Information, without reference to written or other recorded versions of the Confidential Information.

11.2 This Article does not grant permission to disclose Confidential Information to third parties, and the Receiving Party shall not intentionally memorize Confidential Information for the purpose of circumventing this Agreement.

ARTICLE 12. NON-SOLICITATION (OPTIONAL)

☐ Check this box if the following non-solicitation provision applies:

12.1 Non-Solicitation of Employees. During the Term and for a period of [________________________________] months following expiration or termination of this Agreement, neither Party shall, directly or indirectly, solicit, recruit, hire, or attempt to solicit, recruit, or hire any employee or independent contractor of the other Party with whom the soliciting Party had contact or about whom the soliciting Party received Confidential Information in connection with the Purpose, without the prior written consent of the other Party.

12.2 Exceptions. The foregoing restriction shall not apply to: (a) general solicitations of employment through public advertisements, job boards, or recruiting agencies not specifically targeting the other Party's employees; or (b) any individual who contacts the soliciting Party on his or her own initiative without any direct or indirect solicitation by the soliciting Party.

ARTICLE 13. GOVERNING LAW

13.1 This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New Hampshire, including the New Hampshire Uniform Trade Secrets Act, N.H. RSA 350-B:1 et seq., without regard to conflicts of law principles that would require application of the laws of another jurisdiction.

13.2 To the extent applicable, claims arising under the Defend Trade Secrets Act, 18 U.S.C. 1836 et seq., shall be governed by federal law.

ARTICLE 14. DISPUTE RESOLUTION

14.1 Negotiation. The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement through direct negotiation between authorized representatives for a period of thirty (30) days after written notice of the dispute.

14.2 Mediation. If the dispute is not resolved through negotiation, the Parties shall submit the dispute to non-binding mediation administered by a mutually agreed-upon mediator in [________________________________], New Hampshire, before initiating any litigation.

14.3 Litigation. If the dispute is not resolved through mediation within sixty (60) days, either Party may commence litigation in the state or federal courts located in [________________________________] County, New Hampshire.

14.4 Consent to Jurisdiction. Each Party irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts located in [________________________________] County, New Hampshire, and waives any objection based on inconvenient forum or lack of jurisdiction.

14.5 Injunctive Relief Exception. Notwithstanding the foregoing, either Party may seek temporary or preliminary injunctive relief from any court of competent jurisdiction without first engaging in the dispute resolution procedures set forth above.

14.6 Jury Trial Waiver. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH THEREOF.

ARTICLE 15. GENERAL PROVISIONS

15.1 Assignment. Neither Party may assign or transfer this Agreement or any rights or obligations hereunder without the prior written consent of the other Party, except that either Party may assign this Agreement without consent to a successor in connection with a merger, acquisition, or sale of all or substantially all of its assets. Any attempted assignment in violation of this Section shall be void.

15.2 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. The invalid provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable while preserving the Parties' original intent.

15.3 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, relating to such subject matter.

15.4 Amendments. No amendment, modification, or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both Parties.

15.5 Waiver. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof.

15.6 Notices. All notices under this Agreement shall be in writing and shall be deemed duly given when: (a) delivered personally; (b) sent by certified mail, return receipt requested, postage prepaid; (c) sent by nationally recognized overnight courier; or (d) sent by email with confirmation of receipt, to the addresses set forth above or to such other address as a Party may designate in writing.

15.7 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. Electronic signatures and electronically transmitted copies of signatures shall be deemed original signatures for all purposes.

15.8 Independent Contractors. The Parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, employment, or fiduciary relationship between the Parties.

15.9 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their permitted successors and assigns. Nothing herein confers any rights upon any third party.

15.10 Construction. This Agreement shall be construed without regard to any presumption or rule requiring construction against the Party causing the document to be drafted. Headings are for convenience only and shall not affect interpretation.

ARTICLE 16. DTSA WHISTLEBLOWER NOTICE

NOTICE REQUIRED BY 18 U.S.C. 1833(b): An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual: (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

SIGNATURES

IN WITNESS WHEREOF, the Parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.

PARTY A:

PARTY B:

PRACTICE NOTES FOR NEW HAMPSHIRE COUNSEL

1. NH Uniform Trade Secrets Act (RSA 350-B). New Hampshire enacted the Uniform Trade Secrets Act at RSA 350-B:1 through 350-B:9. The definition of "trade secret" under RSA 350-B:1(IV) follows the standard UTSA definition. Practitioners should verify that confidential information qualifying as a trade secret meets the "reasonable efforts to maintain secrecy" requirement.

2. Statute of Limitations. Under RSA 350-B:6, a cause of action for misappropriation must be brought within three (3) years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered. The DTSA also provides a three-year statute of limitations under 18 U.S.C. 1836(d).

3. DTSA Whistleblower Notice. Under 18 U.S.C. 1833(b)(3)(A), an employer must provide notice of whistleblower immunity in any contract or agreement with an employee that governs the use of a trade secret or other confidential information. Failure to provide this notice precludes the employer from recovering exemplary damages or attorney fees under the DTSA against that employee.

4. Injunctive Relief. RSA 350-B:3 authorizes injunctive relief to prevent actual or threatened misappropriation and to compel affirmative acts to protect a trade secret. Consider seeking temporary restraining orders under New Hampshire Superior Court Rule 48.

5. Federal vs. State Claims. The DTSA does not preempt state trade secret law. Both federal and state claims may be brought simultaneously. Federal claims may be filed in the U.S. District Court for the District of New Hampshire.

6. Non-Solicitation Enforceability. New Hampshire courts generally enforce reasonable non-solicitation provisions. Ensure that any non-solicitation clause is reasonable in scope, duration, and geographic area. See Technical Aid Corp. v. Allen, 134 N.H. 1 (1991), for enforceability standards.

7. Electronic Signatures. New Hampshire recognizes electronic signatures under RSA 294-E (Uniform Electronic Transactions Act).

SOURCES AND REFERENCES

• N.H. Rev. Stat. Ann. (RSA) 350-B:1 through 350-B:9 (Uniform Trade Secrets Act)
• 18 U.S.C. 1836 et seq. (Defend Trade Secrets Act of 2016)
• 18 U.S.C. 1833(b) (Whistleblower Immunity)
• 18 U.S.C. 1839 (Definitions)
• N.H. RSA 294-E (Uniform Electronic Transactions Act)
• N.H. Superior Court Rules (injunctive relief procedures)