Non-Disclosure Agreement - Mutual (New Mexico)

MUTUAL NON-DISCLOSURE AGREEMENT (NEW MEXICO)

("Agreement")

TABLE OF CONTENTS

1. Document Header and Recitals
2. Definitions
3. Purpose and Scope
4. Confidentiality Obligations
5. Exclusions from Confidential Information
6. Permitted Disclosures
7. Term and Duration of Obligations
8. Return and Destruction of Materials
9. Remedies
10. DTSA Whistleblower Immunity Notice
11. Intellectual Property
12. Optional Personnel Solicitation Term
13. Representations and Warranties
14. Indemnification
15. General Provisions
16. Current-Law Notes and Scope Gates
17. Signature Blocks

1. DOCUMENT HEADER AND RECITALS

1.1 Effective Date. This Mutual Non-Disclosure Agreement (the "Agreement") is entered into as of [__/__/____] (the "Effective Date").

1.2 Parties.

(a) [________________________________] ("Party A"), a [________________________________] (state entity type, e.g., New Mexico limited liability company), with its principal place of business at [________________________________], [________________________________], New Mexico [____]; and

(b) [________________________________] ("Party B"), a [________________________________] (state entity type), with its principal place of business at [________________________________], [________________________________], [____] [____].

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

1.3 Recitals.

WHEREAS, each Party possesses certain proprietary, confidential, and trade secret information that it desires to protect by contract and, when their elements and predicates are met, under the New Mexico Uniform Trade Secrets Act, NMSA 1978, §§ 57-3A-1 through 57-3A-7 (the "NMUTSA"), and 18 U.S.C. §§ 1836 and 1839 (the "DTSA");

WHEREAS, the Parties desire to engage in discussions and the exchange of information for the purpose of [________________________________] (the "Permitted Purpose");

WHEREAS, in connection with the Permitted Purpose, each Party may disclose to the other Party certain Confidential Information (as defined below) that the Disclosing Party desires the Receiving Party to treat as confidential;

WHEREAS, the Parties wish to establish the terms and conditions under which such Confidential Information will be disclosed, received, and protected;

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

2. DEFINITIONS

For purposes of this Agreement, the following capitalized terms shall have the meanings set forth below:

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

2.2 "Authorized Recipients" means those Representatives of the Receiving Party who (a) have a legitimate need to know the Confidential Information in connection with the Permitted Purpose, (b) have been informed of the confidential nature of such information, and (c) are bound by written confidentiality obligations no less restrictive than those set forth in this Agreement.

2.3 "Confidential Information" means all non-public, proprietary, or confidential information, data, materials, and know-how disclosed by or on behalf of the Disclosing Party to the Receiving Party, whether before or after the Effective Date, in any form or medium (including oral, written, electronic, visual, digital, magnetic, photographic, or any other form), including without limitation:

(a) Business Information: business plans, strategies, forecasts, projections, budgets, financial statements, financial data, revenue figures, pricing information, cost structures, profit margins, tax records, accounting records, investment strategies, merger and acquisition plans, and market analyses;

(b) Technical Information: inventions (whether or not patentable), discoveries, improvements, trade secrets, proprietary technology, algorithms, software (source code and object code), firmware, hardware designs, specifications, schematics, blueprints, prototypes, models, formulas, compositions, manufacturing processes, techniques, methods, procedures, research data, experimental results, test data, and laboratory notebooks;

(c) Customer and Supplier Information: customer lists, customer identities, customer preferences, customer purchase histories, supplier lists, supplier terms, vendor agreements, distribution channels, and sales data;

(d) Personnel Information: employee data, organizational charts, compensation information, personnel records, recruiting plans, and human resources strategies;

(e) Legal Information: pending or threatened litigation, legal strategies, legal opinions, regulatory filings, compliance records, intellectual property portfolios, patent applications, and licensing arrangements;

(f) Marketing and Sales Information: marketing plans, advertising strategies, promotional materials, brand strategies, sales pipelines, lead information, and competitive analyses;

(g) Operational Information: operational processes, supply chain information, logistics data, production schedules, quality control procedures, and internal policies and procedures; and

(h) Any Other Information: any other information that is designated as "Confidential," "Proprietary," "Trade Secret," or with a similar designation at the time of disclosure, or that a reasonable person in the position of the Receiving Party would understand to be confidential given the nature of the information and the circumstances of its disclosure.

2.4 "Disclosing Party" means the Party (or its Affiliate) that discloses Confidential Information to the other Party.

2.5 "Intellectual Property Rights" means all intellectual property rights worldwide, including patents, copyrights, trademarks, service marks, trade dress, trade names, trade secrets, moral rights, rights of publicity, database rights, and all registrations, applications, renewals, extensions, and restorations thereof.

2.6 "Misappropriation" shall have the meaning ascribed to such term under NMSA 1978, § 57-3A-2(B), including acquisition of a trade secret by a person who knows or has reason to know that the trade secret was acquired by improper means, or disclosure or use of a trade secret without express or implied consent.

2.7 "Regulated Data" means information subject to a privacy, security, breach-notice, professional-secrecy, contractual, or industry-specific requirement identified in a written data schedule. This negotiated definition does not replace a controlling legal definition.

2.8 "Receiving Party" means the Party (or its Affiliate) that receives Confidential Information from the other Party.

2.9 "Representatives" means a Party's and its Affiliates' directors, officers, members, managers, partners, employees, agents, consultants, advisors (including attorneys, accountants, and financial advisors), independent contractors, and potential financing sources.

2.10 "Trade Secret" means information that:

(a) derives independent economic value, actual or potential, 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

(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy;

as defined under NMSA 1978, § 57-3A-2(D) and 18 U.S.C. § 1839(3). Trade Secrets are a subset of Confidential Information and may receive statutory protection when the elements and jurisdictional predicates of the applicable act are met.

3. PURPOSE AND SCOPE

3.1 Permitted Purpose. The Parties are entering into this Agreement to facilitate the exchange of Confidential Information solely in connection with [________________________________] (the "Permitted Purpose"). Each Party acknowledges that the Confidential Information disclosed by the other Party is valuable and proprietary.

3.2 No Obligation to Disclose. Nothing in this Agreement shall obligate either Party to disclose any particular Confidential Information to the other Party. Each Party retains sole discretion regarding what information, if any, it chooses to disclose.

3.3 No Obligation to Proceed. Nothing in this Agreement shall obligate either Party to enter into any further agreement or transaction, or to proceed with the Permitted Purpose or any aspect thereof.

3.4 Scope. This Agreement applies to all Confidential Information disclosed by either Party to the other Party, whether disclosed before or after the Effective Date, in connection with the Permitted Purpose.

4. CONFIDENTIALITY OBLIGATIONS

4.1 Standard of Care. The Receiving Party shall:

(a) hold all Confidential Information in strict confidence using at least the same degree of care that the Receiving Party uses to protect its own confidential information of a similar nature, but in no event less than a commercially reasonable degree of care;

(b) not disclose, publish, or disseminate Confidential Information to any third party except as expressly permitted by this Agreement;

(c) use the Confidential Information solely for the Permitted Purpose and for no other purpose whatsoever;

(d) restrict access to Confidential Information to Authorized Recipients who have a need to know such information in connection with the Permitted Purpose;

(e) ensure that all Authorized Recipients are informed of the confidential nature of the Confidential Information and are bound by written confidentiality obligations at least as restrictive as those contained in this Agreement prior to any disclosure;

(f) not copy, reproduce, or duplicate Confidential Information except as reasonably necessary for the Permitted Purpose;

(g) take all reasonable precautions to prevent unauthorized access to, disclosure of, or use of Confidential Information, including implementing appropriate physical, electronic, and procedural safeguards; and

(h) immediately notify the Disclosing Party in writing upon discovery of any unauthorized access to, disclosure of, or use of Confidential Information.

4.2 Responsibility for Representatives. The Receiving Party shall be fully responsible and liable for any breach of this Agreement by any of its Representatives or Authorized Recipients. Any act or omission of a Representative or Authorized Recipient that would constitute a breach of this Agreement if performed by the Receiving Party shall be deemed a breach by the Receiving Party.

4.3 No Disclosure to Competitors. Without limiting the generality of the foregoing, the Receiving Party shall not disclose any Confidential Information to any competitor of the Disclosing Party without the Disclosing Party's prior written consent.

4.4 Marking of Materials. The Disclosing Party shall use reasonable efforts to mark written or electronic Confidential Information as "Confidential," "Proprietary," "Trade Secret," or with a similar designation. However, the failure to mark any information shall not affect its status as Confidential Information if it would otherwise qualify under Section 2.3.

4.5 Oral Disclosures. If Confidential Information is disclosed orally or visually, the Disclosing Party shall identify it as confidential at the time of disclosure and shall confirm such designation in writing within thirty (30) days thereafter. However, the failure to so confirm shall not affect the status of such information as Confidential Information if a reasonable person would understand it to be confidential.

4.6 Data Security Requirements. Each Party shall implement and maintain the safeguards selected in a written security schedule, which may include:

(a) encryption of electronically stored Confidential Information at rest and in transit;

(b) access controls limiting access to Authorized Recipients;

(c) secure storage of physical documents containing Confidential Information;

(d) regular security assessments and audits; and

(e) incident response, retention, secure deletion, and Subcontractor controls.

Before either Party receives Regulated Data, the Parties shall identify their actual roles, data categories, individuals, systems, processing locations, retention, incident-notice allocation, and legally responsible notifier in a counsel-reviewed addendum. This Agreement alone does not satisfy a role-specific data law.

5. EXCLUSIONS FROM CONFIDENTIAL INFORMATION

5.1 Exclusions. Confidential Information shall not include information that the Receiving Party can demonstrate through written records or other reliable evidence:

(a) Public Domain: was or becomes generally available to the public other than as a result of a breach of this Agreement or any other obligation of confidentiality owed to the Disclosing Party;

(b) Prior Knowledge: was already known to the Receiving Party prior to disclosure by the Disclosing Party, as evidenced by written records predating such disclosure;

(c) Third-Party Disclosure: was or is received by the Receiving Party from a third party who, to the Receiving Party's knowledge, was not bound by any obligation of confidentiality to the Disclosing Party with respect to such information;

(d) Independent Development: was independently developed by the Receiving Party without use of, reference to, or reliance upon the Disclosing Party's Confidential Information, as demonstrated by contemporaneous written records; or

(e) Written Approval: is approved in writing by the Disclosing Party for unrestricted disclosure.

5.2 Burden of Proof. The burden of establishing any of the exclusions set forth in Section 5.1 shall rest with the Receiving Party. Each exclusion shall be construed narrowly, and the combination of information that is individually public shall not be excluded merely because each individual element is publicly available, unless the combination itself is publicly available.

5.3 Trade Secrets. A contractual label does not make information a Trade Secret. Information receives statutory trade-secret treatment only while it satisfies the controlling definition, including the secrecy, value, and reasonable-efforts elements in NMSA 1978, § 57-3A-2(D) and, when applicable, 18 U.S.C. § 1839(3).

6. PERMITTED DISCLOSURES

6.1 Legal Compulsion. If the Receiving Party or any of its Representatives is required by applicable law, regulation, rule, court order, subpoena, civil investigative demand, or other legal process (collectively, "Legal Process") to disclose any Confidential Information, the Receiving Party shall:

(a) to the extent legally permissible, provide prompt written notice early enough to allow the Disclosing Party a reasonable opportunity to seek protective treatment;

(b) cooperate with the Disclosing Party, at the Disclosing Party's expense, in seeking 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 reasonable efforts to obtain confidential treatment or a protective order for any Confidential Information so disclosed.

6.2 Regulatory Disclosures. If either Party is required to disclose Confidential Information to a governmental authority, regulatory agency, or self-regulatory organization in connection with an examination, audit, investigation, or inquiry, such Party shall, to the extent legally permissible, provide the other Party with prior written notice and shall disclose only such Confidential Information as is legally required.

6.3 Professional Advisors. Either Party may disclose Confidential Information to its attorneys, accountants, financial advisors, and other professional advisors who have a need to know such information in connection with the Permitted Purpose, provided that such advisors are bound by professional ethical obligations of confidentiality or have executed written confidentiality agreements no less restrictive than this Agreement.

6.4 Other Required or Permitted Disclosures. Any tax, securities, professional, whistleblower, regulatory, or other disclosure carveout must be stated in a tailored addendum or supplied by controlling law. This Agreement does not create a blanket right to publish transaction materials.

7. TERM AND DURATION OF OBLIGATIONS

7.1 Agreement Term. This Agreement shall commence on the Effective Date and shall continue for a period of [____] ([____]) years from the Effective Date (the "Term"), unless earlier terminated in accordance with Section 7.3 or extended by mutual written agreement of the Parties.

7.2 Survival of Confidentiality Obligations.

(a) Non-Trade Secret Information. With respect to Confidential Information that does not constitute a Trade Secret, 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 the date of expiration or termination.

(b) Trade Secrets. With respect to Confidential Information that constitutes a Trade Secret under NMSA 1978, § 57-3A-2(D) or 18 U.S.C. § 1839(3), the obligations of confidentiality and non-use shall continue for so long as such information remains a Trade Secret under applicable law, regardless of the expiration or termination of this Agreement.

(c) Other Surviving Terms. Return, remedies, ownership, dispute, and other terms survive only for the period stated in the applicable section or for as long as needed to give effect to an accrued right or duty.

7.3 Termination. Either Party may terminate this Agreement at any time upon thirty (30) days' prior written notice to the other Party. Termination of this Agreement shall not release either Party from its obligations with respect to Confidential Information disclosed prior to the effective date of termination.

7.4 Effect of Termination. Upon termination or expiration of this Agreement:

(a) each Party shall cease all use of the other Party's Confidential Information;

(b) each Party shall comply with the return and destruction obligations set forth in Section 8; and

(c) all provisions of this Agreement that by their nature are intended to survive termination or expiration shall continue in full force and effect.

8. RETURN AND DESTRUCTION OF MATERIALS

8.1 Obligation. Upon the earlier of (a) the written request of the Disclosing Party, (b) the expiration of the Term, or (c) the termination of this Agreement, the Receiving Party shall, at the Disclosing Party's election, promptly (and in any event within fifteen (15) business days):

(a) return to the Disclosing Party all originals and copies of Confidential Information in any form or medium, including all documents, files, records, notes, memoranda, reports, analyses, compilations, studies, summaries, extracts, and any other materials containing, reflecting, or derived from Confidential Information; or

(b) destroy all such Confidential Information and materials, using commercially reasonable methods of destruction appropriate to the medium (including shredding for physical documents and secure deletion for electronic files).

8.2 Certification. Upon completion of the return or destruction of Confidential Information, an authorized officer of the Receiving Party shall promptly certify in writing to the Disclosing Party that all Confidential Information has been returned or destroyed in accordance with this Section 8.

8.3 Exceptions.

(a) Archival Copy. Notwithstanding Section 8.1, the Receiving Party may retain one (1) archival copy of the Confidential Information solely for legal compliance and audit purposes, stored securely with access limited to the Receiving Party's legal counsel.

(b) Automatic Backup Systems. The Receiving Party shall not be required to destroy Confidential Information contained in automatic electronic backup or archival systems, provided that (i) such systems are not readily accessible to end users in the ordinary course, (ii) such Confidential Information is not intentionally accessed following the return or destruction obligation, and (iii) such Confidential Information is destroyed in the ordinary course of the Receiving Party's backup rotation.

(c) Continuing Obligations. All retained Confidential Information, whether under subsection (a) or (b), shall remain subject to the confidentiality and non-use obligations of this Agreement for the applicable survival period.

8.4 Derived Materials. For the avoidance of doubt, the return and destruction obligations in this Section 8 extend to all materials derived from or incorporating Confidential Information, including analyses, compilations, studies, notes, summaries, and other documents prepared by the Receiving Party or its Representatives.

9. REMEDIES

9.1 Contract Remedies. A Party asserting breach must establish the elements, loss, causation, and remedy required by the controlling contract law and forum rules. This Agreement does not make irreparable harm, damages, fees, or any other remedy automatic.

9.2 Provisional Relief. Either Party may request provisional or equitable relief from a forum with authority to grant it. Availability, proof, scope, procedure, and security are determined by controlling law and court order; this Agreement does not waive a bond, prove actual harm, or excuse a selected dispute procedure except as that procedure expressly permits.

For a qualifying statutory trade-secret claim, NMSA 1978, § 57-3A-3 permits a court to enjoin actual or threatened misappropriation on the terms stated there. The DTSA separately authorizes the relief in 18 U.S.C. § 1836(b)(3)(A) when its interstate-or-foreign-commerce and other predicates are met.

9.3 Statutory Misappropriation Damages. If the claimant proves statutory trade-secret misappropriation, NMSA 1978, § 57-3A-4 permits actual-loss and nonduplicative unjust-enrichment damages or a reasonable royalty, subject to the section's equitable limitation. Willful and malicious misappropriation permits, but does not require, exemplary damages up to twice the subsection A award. The DTSA supplies a separate federal remedy map in 18 U.S.C. § 1836(b)(3)(B)-(C) when that statute applies.

9.4 Trade-Secret Attorneys' Fees. NMSA 1978, § 57-3A-5 permits the court to award reasonable attorneys' fees to the prevailing party only if:

(a) a claim of misappropriation is made in bad faith;

(b) a motion to terminate an injunction is made or resisted in bad faith; or

(c) willful and malicious misappropriation exists.

9.5 No Remedy Expansion. Contract remedies and statutory remedies remain subject to their separate elements, defenses, limits, election rules, and anti-duplication principles. This Agreement does not convert every confidentiality breach into trade-secret misappropriation.

9.6 Liability Selection. Select one after New Mexico counsel reviews the purpose, information, safeguards, remedies, indemnity, and bargaining context:

☐ No contractual liability cap for breach of this Agreement.

☐ Aggregate contract damages are capped at $[________________________________], subject to these negotiated carveouts: [________________________________].

☐ Liability treatment is stated in controlling agreement Section [____].

10. DTSA WHISTLEBLOWER IMMUNITY NOTICE

10.1 Federal Whistleblower Immunity. In accordance with the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), the Parties hereby provide the following notice:

NOTICE: An individual shall not be held criminally or civilly liable under any federal or state trade secret law for a disclosure of a trade secret that (A) is made (i) in confidence to a federal, state, or local government official, directly or indirectly, or to an attorney, and (ii) solely for reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed under seal in a lawsuit or other proceeding.

10.2 Use in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the employer's trade secrets 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.

10.3 Scope and Acknowledgment. Section 1833(b)(3) requires an employer to provide this notice in an agreement with an employee governing trade-secret or confidential-information use and defines employee to include an individual contractor or consultant. Including the notice here does not make either Party an employer or employee. Each covered individual should receive a copy or a compliant policy cross-reference.

11. INTELLECTUAL PROPERTY

11.1 No License Granted. Nothing in this Agreement shall be construed as granting to the Receiving Party any license, right, title, or interest in or to any Intellectual Property Rights of the Disclosing Party, whether by implication, estoppel, or otherwise.

11.2 Ownership. All Confidential Information shall remain the sole and exclusive property of the Disclosing Party. No disclosure of Confidential Information hereunder shall constitute an assignment, transfer, or conveyance of any right, title, or interest in such Confidential Information or in any Intellectual Property Rights related thereto.

11.3 Reverse Engineering — select one.

☐ No contractual reverse-engineering restriction.

☐ The Receiving Party shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive the composition or structure of the following identified item, subject to any controlling nonwaivable rule: [________________________________].

11.4 Residual Knowledge — select one.

☐ No residual-knowledge license or exception.

☐ The following limited residual-knowledge rule applies: [________________________________]. It does not authorize disclosure of Confidential Information, use of a Trade Secret, infringement, or intentional memorization.

11.5 No Implied Rights. Nothing in this Agreement shall be construed as:

(a) an obligation to enter into any further agreement;

(b) a grant of exclusive dealing rights;

(c) a commitment to purchase or sell any product or service; or

(d) a waiver of any Intellectual Property Rights.

12. OPTIONAL PERSONNEL SOLICITATION TERM

12.1 Selection. A confidentiality agreement does not require a personnel or customer restraint. Select only after New Mexico counsel reviews the actual relationship and current law:

☐ No non-solicitation or non-hire restriction.

☐ For [____] months, neither Party shall directly solicit for employment the following personnel with whom it had material contact through the Permitted Purpose: [________________________________].

12.2 Confidential-Information Boundary. Neither Party may use the other Party's Confidential Information to target an employee, customer, vendor, or other relationship. This does not create a broader restraint on lawful competition or independent activity.

12.3 Exceptions. Any selected personnel restriction does not apply to:

(a) general advertising or solicitation not specifically directed at the other Party's employees, customers, or suppliers;

(b) responses to unsolicited inquiries from the other Party's employees, customers, or suppliers; or

(c) an individual whose employment or engagement with the other Party ended before the targeted contact, unless the Parties state a narrower supported rule here: [________________________________].

12.4 No Enforceability Promise. The Parties request enforcement only to the extent the selected restriction is valid for the actual parties, workers, purpose, scope, duration, and remedy. This Agreement does not promise modification or enforcement.

13. REPRESENTATIONS AND WARRANTIES

13.1 Authority. Each Party represents and warrants that:

(a) it has full legal power, authority, and capacity to execute, deliver, and perform this Agreement;

(b) the execution and performance of this Agreement has been duly authorized by all necessary corporate, partnership, or organizational action;

(c) the execution, delivery, and performance of this Agreement will not knowingly violate or conflict with another binding obligation of that Party; and

(d) the person executing this Agreement on behalf of such Party is duly authorized to do so.

13.2 Right to Disclose. Each Party represents and warrants that it has the legal right to disclose the Confidential Information that it provides to the other Party and that such disclosure does not violate the rights of any third party.

13.3 No Warranty as to Accuracy. CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF:

(a) ACCURACY, COMPLETENESS, OR RELIABILITY;

(b) MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE;

(c) NON-INFRINGEMENT OF THIRD-PARTY RIGHTS; OR

(d) FREEDOM FROM ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DAMAGES ARISING FROM THE USE OF OR RELIANCE ON CONFIDENTIAL INFORMATION, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.

13.4 Specialized-Law Gate. Each Party shall comply with requirements actually applicable to its receipt, storage, use, and disclosure of information. Before disclosure, the Parties shall attach tailored terms for Regulated Data, export-controlled material, professional secrets, government records, employment information, health or financial information, or another specially regulated category.

13.5 Survival. An accrued claim under this Section survives only for the controlling limitation period and subject to any agreed liability term.

14. INDEMNIFICATION

14.1 Selection. Select one after coordinating this clause with Section 9 and any controlling transaction agreement:

☐ No contractual indemnification under this Agreement.

☐ Each Receiving Party shall defend and indemnify the Disclosing Party against a third-party claim to the extent caused by the Receiving Party's breach of Sections 4 or 6. State covered losses, exclusions, cap, and defense-control terms: [________________________________].

14.2 Indemnification Procedures. The Indemnified Party shall:

(a) provide the indemnifying Party with prompt written notice of any claim for which indemnification is sought;

(b) grant the indemnifying Party sole control over the defense and settlement of such claim, provided that the indemnifying Party shall not settle any claim without the Indemnified Party's prior written consent if the settlement would impose any obligation or liability on the Indemnified Party; and

(c) provide reasonable cooperation to the indemnifying Party in the defense of such claim, at the indemnifying Party's expense.

14.3 Failure to Notify. The failure to provide prompt notice under Section 14.2(a) shall not relieve the indemnifying Party of its obligations hereunder except to the extent that the indemnifying Party is materially prejudiced by such failure.

15. GENERAL PROVISIONS

15.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New Mexico, without applying a rule that would select another jurisdiction's law. The NMUTSA and DTSA may supply separate statutory claims only when their elements and jurisdictional predicates are met.

15.2 Jurisdiction and Venue. Subject to jurisdiction and any mandatory venue rule, the Parties consent to exclusive proceedings in courts serving [________________________________] County, New Mexico, and a federal court with jurisdiction over that county.

15.3 Dispute Route — select one.

☐ Court proceedings under Sections 15.1 and 15.2.

☐ Attach a counsel-drafted arbitration addendum stating administrator, rules, seat, scope, arbitrator qualifications, provisional relief, discovery, confidentiality, fees, award form, court judgment, and any class or jury terms. This checkbox alone does not create an arbitration agreement.

15.4 Jury Trial — select after New Mexico counsel review.

☐ No contractual jury waiver.

☐ Each Party knowingly and voluntarily waives jury trial for a claim arising from this Agreement and acknowledges that the conspicuous clause was negotiable and reviewed with an opportunity for counsel.

15.5 Assignment. Neither Party may assign, delegate, or transfer this Agreement or any of its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of the other Party; provided, however, that either Party may assign this Agreement without such consent to:

(a) an Affiliate of such Party; or

(b) a successor in interest in connection with a merger, acquisition, reorganization, or sale of all or substantially all of such Party's assets;

provided that the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any attempted assignment in violation of this Section 15.5 shall be null and void.

15.6 Amendment and Waiver. No amendment, modification, or supplement to this Agreement shall be valid or binding unless made in writing and signed by authorized representatives of both Parties. No waiver of any breach or default shall be deemed a waiver of any subsequent breach or default, nor shall any waiver be deemed a continuing waiver. No delay or failure to exercise any right or remedy shall operate as a waiver thereof.

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

15.8 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, representations, and warranties, whether oral or written, with respect to such subject matter. Each Party acknowledges that it has not relied on any statement, representation, or promise not expressly contained in this Agreement.

15.9 Counterparts and Signature Method. This Agreement may be signed in counterparts and the Parties may exchange authenticated signature pages electronically. Counsel shall confirm any transaction-specific signature, record, notarial, filing, or retention formality.

15.10 Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed delivered:

(a) upon receipt, if delivered personally;

(b) one (1) business day after deposit with a nationally recognized overnight courier service;

(c) three (3) business days after deposit in the United States mail, certified or registered, return receipt requested, postage prepaid; or

(d) upon confirmed receipt (excluding automated replies), if sent by email;

addressed to the respective Party at the address set forth below or to such other address as a Party may designate by written notice:

If to Party A:
[________________________________]
[________________________________]
[________________________________], New Mexico [____]
Attn: [________________________________]
Email: [________________________________]

If to Party B:
[________________________________]
[________________________________]
[________________________________], [____] [____]
Attn: [________________________________]
Email: [________________________________]

15.11 Relationship of the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, fiduciary, or employment relationship between the Parties. Neither Party shall have the authority to bind or obligate the other Party in any manner.

15.12 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, pandemic, epidemic, war, terrorism, civil unrest, strikes, labor disputes, governmental action, power or internet outages, or other force majeure events, provided the affected Party uses diligent efforts to resume performance as soon as practicable and provides prompt written notice to the other Party.

15.13 Construction. The headings in this Agreement are for convenience only and shall not affect the interpretation of this Agreement. As used in this Agreement, "including" means "including but not limited to," and the singular includes the plural and vice versa. This Agreement shall be construed without regard to any presumption or rule requiring construction against the drafting Party.

15.14 Third-Party Beneficiaries. Except as expressly set forth in Section 14.1, this Agreement is not intended to confer any rights or remedies upon any person or entity other than the Parties and their permitted successors and assigns.

15.15 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.

16. CURRENT-LAW NOTES AND SCOPE GATES

16.1 New Mexico Uniform Trade Secrets Act (NMUTSA).

(a) Statutory Citation. The NMUTSA is codified at NMSA 1978, §§ 57-3A-1 through 57-3A-7. New Mexico adopted the Uniform Trade Secrets Act in 1989 (Laws 1989, ch. 156).

(b) Trade Secret Definition. Under NMSA 1978, § 57-3A-2(D), a "trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that derives independent economic value, actual or potential, 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 that are reasonable under the circumstances to maintain its secrecy.

(c) Misappropriation. Under NMSA 1978, § 57-3A-2(B), "misappropriation" includes acquisition of a trade secret by a person who knows or has reason to know that the trade secret was acquired by improper means, as well as disclosure or use of a trade secret without express or implied consent.

(d) Injunctive Relief. Under NMSA 1978, § 57-3A-3, actual or threatened misappropriation may be enjoined. Upon application, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period to eliminate commercial advantage. In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty.

(e) Damages. Under NMSA 1978, § 57-3A-4, damages may include both the actual loss and any unjust enrichment caused by misappropriation. A reasonable royalty may be imposed in lieu of such damages. If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not to exceed twice (2x) the damages awarded.

(f) Attorneys' Fees. Under NMSA 1978, § 57-3A-5, the court may award reasonable attorneys' fees to the prevailing party if a claim is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists.

16.2 Statute of Limitations. Under NMSA 1978, § 57-3A-7, an 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. A continuing misappropriation constitutes a single claim. Parties should be aware that the federal DTSA provides a separate three (3) year statute of limitations under 18 U.S.C. § 1836(d).

16.3 Federal DTSA Overlay. Under 18 U.S.C. § 1836(b)(1), an owner may bring the federal civil action when the misappropriated Trade Secret relates to a product or service used in, or intended for use in, interstate or foreign commerce. Section 1836(b)(3) states the injunction, actual-loss, unjust-enrichment, reasonable-royalty, exemplary-damages, and conditional fee remedies; none is automatic merely because this Agreement was breached.

16.4 Contract and Data Scope Gates. This Agreement protects information by contract but does not make every covered item a statutory Trade Secret, create a non-compete, bind a nonparty spouse or Affiliate, or replace a privacy, security, professional-secrecy, records, export, employment, or industry-specific addendum. Identify and ground any such overlay before disclosure.

16.5 Preservation of Secrecy. In an action under the NMUTSA, NMSA 1978, § 57-3A-6 requires the court to preserve the secrecy of an alleged Trade Secret by reasonable means, which may include protective orders, in-camera hearings, sealed records, and nondisclosure directions.

17. SIGNATURE BLOCKS

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

PARTY A:

PARTY B:

EXHIBIT A - DESCRIPTION OF PERMITTED PURPOSE

[________________________________]

[Describe in detail the Permitted Purpose, including the nature of the proposed transaction, project, or business relationship, the types of Confidential Information expected to be exchanged, and any limitations on the scope of the information exchange.]

SOURCES AND REFERENCES

• Current New Mexico Statutes Annotated 1978, Chapter 57, Article 3A — Uniform Trade Secrets Act
• 18 U.S.C. § 1833 — immunity and employer notice
• 18 U.S.C. § 1836 — federal civil action and remedies
• 18 U.S.C. § 1839 — federal definitions

DISCLAIMER: This template is provided for informational purposes only and does not constitute legal advice. It is intended as a starting point for a mutual non-disclosure agreement governed by New Mexico law. You must have this document reviewed, customized, and approved by a qualified attorney licensed in the State of New Mexico before execution. Laws change frequently, and this template may not reflect the most current statutory requirements. Do not use this template without professional legal review. Neither the provider of this template nor the platform on which it is hosted assumes any liability for the use of this template.

Template prepared for use on ezel.ai -- Last updated: 2026-08-14