Non-Disclosure Agreement - Mutual (Oregon)

MUTUAL NON-DISCLOSURE AGREEMENT (OREGON)

("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. Non-Solicitation and Non-Hire
13. Representations and Warranties
14. Indemnification
15. General Provisions
16. Oregon-Specific Provisions
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., Oregon limited liability company), with its principal place of business at [________________________________], [________________________________], Oregon [____]; 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 in accordance with the Oregon Uniform Trade Secrets Act, ORS §§ 646.461 through 646.475 (the "OUTSA"), and the federal Defend Trade Secrets Act of 2016, 18 U.S.C. §§ 1836-1839 (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 acknowledge that Oregon law provides specific protections for trade secrets and imposes statutory limitations on non-competition agreements under ORS § 653.295 (as amended by the Oregon Workforce Fairness Act), and that this Agreement is intended solely to protect confidential information and trade secrets without creating an impermissible non-competition restriction;

WHEREAS, the Parties further acknowledge that Oregon's Consumer Information Protection Act (ORS §§ 646A.600-646A.628) imposes specific obligations regarding the protection and breach notification of personal information, which may be relevant to certain categories of Confidential Information exchanged hereunder;

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) Competitively Sensitive Information: product development plans, product launch plans, marketing strategy, and sales plans that constitute "competitively sensitive confidential business or professional information" as referenced in ORS § 653.295(1)(d)(B), even if such information does not independently qualify as a Trade Secret;

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

(i) 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 "Consumer Personal Information" means information that constitutes "personal information" as defined under the Oregon Consumer Information Protection Act, ORS § 646A.602(11), including a consumer's first name or first initial and last name in combination with any one or more of the following data elements: Social Security number, driver's license number or state identification card number, passport number or other United States-issued identification number, financial account number or credit or debit card number in combination with any required security code, access code, or password, biometric data, health insurance information, or medical information.

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

2.6 "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.

2.7 "Misappropriation" shall have the meaning ascribed to such term under ORS § 646.461(2), including:

(a) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

(b) disclosure or use of a trade secret of another without express or implied consent by a person who used improper means to acquire knowledge of the trade secret, who at the time of disclosure or use knew or had reason to know that the knowledge was derived from or through a person who had used improper means, or who before a material change in position knew or had reason to know it was a trade secret and that knowledge of it was acquired by accident or mistake.

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, including without limitation a drawing, cost data, customer list, formula, pattern, compilation, program, device, method, technique, or process, that:

(a) derives independent economic value, actual or potential, from not being generally known to the public or to 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 ORS § 646.461(4) and 18 U.S.C. § 1839(3). The Parties note that Oregon's OUTSA definition specifies "not being generally known to the public," which is a slightly broader formulation than the standard UTSA language. For the avoidance of doubt, Trade Secrets constitute a subset of Confidential Information and are entitled to the heightened protections afforded under both the OUTSA and the DTSA.

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.

3.5 No Restraint on Competition. This Agreement is a non-disclosure agreement only and is not a non-competition agreement under ORS § 653.295 or any other provision of Oregon law. Nothing in this Agreement restricts either Party's right to engage in any lawful business activity or to compete with the other Party, subject only to the confidentiality and non-use obligations expressly set forth herein.

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 reasonable security measures consistent with industry standards to protect Confidential Information from unauthorized access, including:

(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;

(e) developing, implementing, and maintaining reasonable safeguards to protect the security, confidentiality, and integrity of personal information, as required by ORS § 646A.622; and

(f) compliance with the Oregon Consumer Information Protection Act, ORS §§ 646A.600 through 646A.628, to the extent Confidential Information includes Consumer Personal Information of Oregon residents.

4.7 Oregon Consumer Privacy Act Considerations. If either Party processes the personal data of Oregon consumers in connection with the Permitted Purpose, such Party shall comply with all applicable provisions of the Oregon Consumer Privacy Act (SB 619, effective July 1, 2024), including requirements regarding data minimization, purpose limitation, and consumer rights. The Parties shall cooperate in ensuring that the processing of personal data in connection with Confidential Information complies with applicable privacy requirements.

5. EXCLUSIONS FROM CONFIDENTIAL INFORMATION

5.1 Exclusions. Confidential Information shall not include information that the Receiving Party can demonstrate by clear and convincing 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. Notwithstanding the foregoing exclusions, information that qualifies as a Trade Secret under ORS § 646.461(4) shall retain its Trade Secret status and protections so long as it continues to satisfy the statutory definition, regardless of any contractual exclusion. Oregon's OUTSA protects trade secrets regardless of whether the individual signed a written agreement -- statutory trade secret protection applies to all persons, including employees and former employees.

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 the Disclosing Party with prompt written notice of such Legal Process, and in any event no later than five (5) business days after receipt thereof (or such shorter period as may be required for the Disclosing Party to seek protective relief), so that the Disclosing Party may seek a protective order, injunction, or other appropriate remedy;

(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 (including the Oregon Department of Justice, the Oregon Department of Consumer and Business Services, or federal agencies) 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 Tax Matters. Notwithstanding anything to the contrary in this Agreement, each Party (and each Representative of such Party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of any transaction contemplated by the Permitted Purpose and all materials of any kind (including opinions or other tax analyses) that are provided relating to such tax treatment and tax structure.

6.5 Oregon Public Records. The Parties acknowledge that Oregon has broad public records laws under ORS Chapter 192. If either Party is a public body (as defined in ORS § 192.311(4)), Confidential Information in such Party's possession may be subject to disclosure under the Oregon Public Records Law, subject to applicable exemptions, including the trade secret exemption under ORS § 192.345(2). Each Party shall promptly notify the other Party of any public records request that may require disclosure of Confidential Information and shall cooperate in seeking applicable exemptions.

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 ORS § 646.461(4) 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) Perpetual Obligations. The obligations set forth in Sections 9 (Remedies), 10 (DTSA Whistleblower Immunity Notice), 11 (Intellectual Property), 13 (Representations and Warranties), 14 (Indemnification), and 16 (Oregon-Specific Provisions) shall survive the expiration or termination of this Agreement indefinitely, or for the maximum period permitted by applicable law.

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) Regulatory Retention. If the Receiving Party is required by applicable law or regulation to retain copies of Confidential Information, such retention shall be permitted for so long as legally required.

(d) Continuing Obligations. All retained Confidential Information, whether under subsection (a), (b), or (c), 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 Irreparable Harm. The Parties acknowledge and agree that:

(a) the Confidential Information is valuable and unique;

(b) any breach or threatened breach of this Agreement may cause irreparable harm to the Disclosing Party for which monetary damages alone would be an inadequate remedy; and

(c) the harm resulting from such breach may be difficult or impossible to calculate.

9.2 Injunctive Relief. In the event of any actual or threatened breach of this Agreement, the Disclosing Party shall be entitled to seek equitable relief, including temporary restraining orders, preliminary injunctions, permanent injunctions, and specific performance, from any court of competent jurisdiction in the State of Oregon, without the necessity of:

(a) proving actual damages;

(b) posting any bond or other security (or, if a bond is required by applicable law, the Parties agree that a nominal bond of One Hundred Dollars ($100.00) shall be sufficient); or

(c) exhausting any arbitration or other alternative dispute resolution procedures.

This provision is consistent with the injunctive relief available under ORS § 646.463, which provides that actual or threatened misappropriation of a trade secret may be enjoined. An injunction shall be terminated when the trade secret has ceased to exist, but may be continued for an additional reasonable period of time to eliminate commercial advantage. In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty.

9.3 Monetary Damages. In addition to equitable relief, the Disclosing Party shall be entitled to recover:

(a) actual damages suffered as a result of the breach, including both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss;

(b) in the alternative, a reasonable royalty for the unauthorized use or disclosure of the Confidential Information;

(c) under ORS § 646.465, if willful and malicious misappropriation is established, exemplary damages in an amount not exceeding twice (2x) the award of damages under subsections (a) or (b) above; and

(d) under the DTSA, 18 U.S.C. § 1836(b)(3)(C), if willful and malicious misappropriation is established, exemplary damages in an amount not exceeding twice (2x) the award of damages under 18 U.S.C. § 1836(b)(3)(B).

9.4 Attorneys' Fees and Costs. Consistent with ORS § 646.467, the court may award reasonable attorneys' fees to the prevailing Party 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.

Additionally, the Parties acknowledge that Oregon law (ORS § 20.096) provides that in any action for damages for breach of contract, the court shall award attorney fees if the contract specifically provides that attorney fees and costs incurred to enforce the contract shall be awarded to one party. In accordance therewith, the Parties agree that the prevailing Party in any action to enforce this Agreement shall be entitled to recover reasonable attorneys' fees and costs.

9.5 Cumulative Remedies. All remedies available under this Agreement are cumulative and in addition to any other remedies available at law, in equity, or under statute, including under the OUTSA and the DTSA. Pursuant to ORS § 646.475, the OUTSA does not affect contractual remedies, whether or not based upon misappropriation of a trade secret, or other civil remedies not based upon misappropriation. The exercise of any remedy shall not preclude the exercise of any other remedy.

9.6 No Limitation of Liability. The Parties expressly agree that no limitation of liability applies to claims arising from a breach of this Agreement. Each Party shall remain liable for all damages and remedies allowed under applicable Oregon and federal law.

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 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.

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 Acknowledgment. Each Party acknowledges that it has received and understands this notice regarding immunity from liability for confidential disclosure of a trade secret to the government or in a court filing as provided under 18 U.S.C. § 1833(b).

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 No Reverse Engineering. The Receiving Party shall not reverse engineer, decompile, disassemble, or otherwise attempt to derive the composition, structure, or underlying information, ideas, or algorithms of any Confidential Information, except to the extent expressly permitted by applicable Oregon or federal law notwithstanding a contractual prohibition.

11.4 Residual Knowledge. Nothing in this Agreement shall prohibit a Representative of the Receiving Party from using Residual Knowledge in the course of such Representative's subsequent activities. "Residual Knowledge" means general knowledge, ideas, concepts, know-how, or techniques that are retained in the unaided memory of a Representative who had authorized access to Confidential Information, provided that such Representative has not intentionally memorized the Confidential Information for the purpose of retaining and subsequently using or disclosing it.

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. NON-SOLICITATION AND NON-HIRE

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

12.2 Non-Solicitation of Customers. During the Term and for a period of [____] ([____]) months following the expiration or termination of this Agreement, neither Party shall, directly or indirectly, solicit, induce, or encourage any customer, client, vendor, or supplier of the other Party to cease doing business with, or reduce the volume of business conducted with, the other Party, to the extent such solicitation is based on or facilitated by Confidential Information obtained under this Agreement.

12.3 Exceptions. The restrictions in Sections 12.1 and 12.2 shall 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) any individual whose employment or engagement with the other Party has terminated for at least six (6) months prior to the date of solicitation.

12.4 Enforceability under Oregon Law.

(a) The Parties acknowledge that Oregon law restricts non-competition agreements under ORS § 653.295 but does not prohibit non-solicitation agreements when they are reasonable in scope and duration.

(b) The non-solicitation restrictions in this Section 12 are not non-competition covenants. They do not restrict either Party or its Representatives from engaging in any lawful business, accepting employment with or providing services to competitors, or operating a competing enterprise. They only restrict targeted solicitation of specific employees and customers using Confidential Information.

(c) The Parties intend for the restrictions in this Section 12 to be reasonable and enforceable. If a court determines that any restriction is overbroad, the Parties agree that the court may modify such restriction to the minimum extent necessary to render it enforceable.

12.5 Distinction from Non-Competition Agreement. For the avoidance of doubt, the restrictions in this Section 12 do not constitute a "noncompetition agreement" as defined in ORS § 653.295(1)(b). This Section does not restrain either Party from providing services, soliciting or transacting business with prospective customers, or from engaging in any lawful business activity.

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) this Agreement constitutes a valid and binding obligation of such Party, enforceable in accordance with its terms;

(d) the execution, delivery, and performance of this Agreement will not violate or conflict with any other agreement, obligation, or order by which such Party is bound; and

(e) 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 Compliance with Laws. Each Party represents and warrants that it shall comply with all applicable federal, state, and local laws, regulations, and ordinances in connection with the receipt, storage, use, and disclosure of Confidential Information, including the OUTSA, the DTSA, the Oregon Consumer Information Protection Act (ORS §§ 646A.600-646A.628), the Oregon Consumer Privacy Act (SB 619), and all applicable export control and sanctions laws.

13.5 Survival. The representations and warranties set forth in this Section 13 shall survive the expiration or termination of this Agreement.

14. INDEMNIFICATION

14.1 Indemnification by Receiving Party. The Receiving Party shall indemnify, defend, and hold harmless the Disclosing Party and its Affiliates, and their respective directors, officers, members, managers, employees, agents, successors, and assigns (collectively, the "Indemnified Parties"), from and against any and all claims, demands, actions, suits, proceedings, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and court costs) (collectively, "Losses") arising out of or relating to:

(a) any breach of this Agreement by the Receiving Party or any of its Representatives;

(b) any unauthorized use, disclosure, or misappropriation of Confidential Information by the Receiving Party or any of its Representatives; or

(c) any violation of applicable law by the Receiving Party in connection with Confidential Information, including any failure to comply with the Oregon Consumer Information Protection Act or the Oregon Consumer Privacy Act.

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 Oregon, without regard to its conflict-of-laws principles. The Parties agree that the OUTSA (ORS §§ 646.461 through 646.475) and the DTSA (18 U.S.C. §§ 1836-1839) shall apply to all Trade Secret matters arising under this Agreement.

15.2 Jurisdiction and Venue. The Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in [________________________________] County, Oregon (e.g., Multnomah County, Lane County, or Washington County), for any action, suit, or proceeding arising out of or relating to this Agreement. Each Party waives any objection to venue or forum non conveniens with respect to such courts.

15.3 Arbitration.

(a) Except for actions seeking injunctive or other equitable relief under Section 9.2, any dispute, controversy, or claim arising out of or relating to this Agreement shall be finally settled by binding arbitration administered by [________________________________] (e.g., the American Arbitration Association or JAMS) under its Commercial Arbitration Rules in effect at the time of filing.

(b) The arbitration shall be conducted by a single neutral arbitrator in [________________________________], Oregon.

(c) The proceedings, including the arbitral award, shall be confidential and subject to the confidentiality provisions of this Agreement.

(d) Judgment on the award may be entered in any court of competent jurisdiction in the State of Oregon.

(e) The arbitrator shall have the authority to award any remedy available under this Agreement or applicable law, including injunctive relief and damages.

15.4 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 RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

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; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures transmitted by electronic means, including PDF, facsimile, and reliable electronic signature platforms (e.g., DocuSign, Adobe Sign), shall be deemed original signatures for all purposes, in accordance with the Oregon Uniform Electronic Transactions Act, ORS §§ 84.001 through 84.061, and the federal ESIGN Act, 15 U.S.C. § 7001 et seq.

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:
[________________________________]
[________________________________]
[________________________________], Oregon [____]
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. OREGON-SPECIFIC PROVISIONS

16.1 Oregon Uniform Trade Secrets Act (OUTSA).

(a) Statutory Citation. The OUTSA is codified at ORS §§ 646.461 through 646.475 and may be cited as the "Uniform Trade Secrets Act." Oregon adopted the UTSA with some modifications from the model act.

(b) Trade Secret Definition. Under ORS § 646.461(4), a "trade secret" means information, including a drawing, cost data, customer list, formula, pattern, compilation, program, device, method, technique, or process, that derives independent economic value, actual or potential, from not being generally known to the public or to 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. Note that Oregon's definition uses the phrase "not being generally known to the public," which is slightly broader than the standard UTSA formulation.

(c) Universal Application. Oregon's OUTSA applies to all persons, including employees and former employees, regardless of whether they signed a written NDA or other confidentiality agreement. This statutory protection operates independently of any contractual obligations.

(d) Injunctive Relief. Under ORS § 646.463, actual or threatened misappropriation may be enjoined. An injunction shall be terminated when the trade secret has ceased to exist, but may be continued for an additional reasonable period to eliminate commercial advantage. In exceptional circumstances, a court may order future use upon payment of a reasonable royalty.

(e) Damages. Under ORS § 646.465(1), damages may include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss. A reasonable royalty may be imposed in lieu of such damages.

(f) Exemplary Damages. Under ORS § 646.465(2), if willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice (2x) the damages awarded under ORS § 646.465(1).

(g) Attorneys' Fees. Under ORS § 646.467, 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.

(h) Preservation of Other Remedies. Under ORS § 646.475, the OUTSA does not affect contractual remedies, whether or not based upon misappropriation of a trade secret, or other civil remedies not based upon misappropriation.

16.2 Statute of Limitations. Under ORS § 646.471, 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. The federal DTSA provides a separate three (3) year statute of limitations under 18 U.S.C. § 1836(d).

16.3 Federal DTSA Overlay. In addition to rights under the OUTSA, each Party retains all rights and remedies under the federal Defend Trade Secrets Act, 18 U.S.C. §§ 1836-1839, including the right to bring a civil action in federal court for trade secret misappropriation related to a product or service used in, or intended for use in, interstate or foreign commerce. The DTSA provides for injunctive relief, compensatory damages, exemplary damages (up to 2x for willful and malicious misappropriation), reasonable attorneys' fees, and ex parte seizure of property in extraordinary circumstances under 18 U.S.C. § 1836(b)(2).

16.4 Non-Compete Restrictions under Oregon Law (ORS § 653.295).

(a) Statutory Framework. Oregon law restricts the enforceability of non-competition agreements under ORS § 653.295 (as amended by the Oregon Workforce Fairness Act). A non-competition agreement is voidable and unenforceable unless specific statutory requirements are met.

(b) Requirements for Enforceability. Under ORS § 653.295, a non-competition agreement entered into with an employee is enforceable only if:

☐ The employer informs the employee of the non-competition agreement in a written employment offer received at least two (2) weeks before the employee's first day of employment, or the agreement is entered into upon a subsequent bona fide promotion;

☐ The employee is engaged in administrative, executive, or professional-level work and performs predominantly intellectual, managerial, or creative tasks and exercises discretion and independent judgment;

☐ The employer has a "protectable interest," meaning the employee has access to trade secrets (as defined in ORS § 646.461) or has access to competitively sensitive confidential business or professional information that otherwise would not qualify as a trade secret (including product development plans, product launch plans, marketing strategy, or sales plans); and

☐ The employee's gross annual salary and commissions at the time of termination exceed the median family income for a four-person family as determined by the U.S. Census Bureau.

(c) Maximum Duration. Under ORS § 653.295, the term of a non-competition agreement may not exceed eighteen (18) months from the date of the employee's termination.

(d) Distinction from NDA. This Agreement is a non-disclosure agreement and is expressly not a non-competition agreement under ORS § 653.295. The confidentiality and non-use obligations contained herein do not restrict either Party or its Representatives from engaging in any business activity, accepting employment, or competing with the other Party. The protections in this Agreement are limited to preventing the misuse and unauthorized disclosure of Confidential Information and Trade Secrets.

(e) Relevance to NDA Scope. The concept of "protectable interest" under ORS § 653.295(1)(d) is relevant because it confirms that Oregon law recognizes trade secrets and competitively sensitive confidential business information as categories of information warranting legal protection. The scope of "Confidential Information" as defined in Section 2.3 of this Agreement is consistent with the categories of protectable information recognized under Oregon law.

16.5 Oregon Consumer Information Protection Act.

(a) If Confidential Information exchanged under this Agreement includes Consumer Personal Information of Oregon residents, and a breach of security (as defined in ORS § 646A.602(1)) occurs, the Party in possession of such information shall comply with all notification requirements under ORS §§ 646A.604 and 646A.624.

(b) Under ORS § 646A.604, notification must be made in the most expedient time possible and without unreasonable delay, but not later than forty-five (45) days after the entity discovers or is notified of the breach.

(c) If the breach affects more than two hundred fifty (250) Oregon consumers, the responsible Party must also notify the Oregon Attorney General within forty-five (45) days.

(d) Under ORS § 646A.622, any person that owns, maintains, or otherwise possesses personal information must develop, implement, and maintain reasonable safeguards to protect the security, confidentiality, and integrity of the personal information.

(e) Each Party shall promptly notify the other Party upon discovery of any breach or suspected breach affecting the other Party's Confidential Information, and the Parties shall cooperate in investigating and remediating such breach.

16.6 Oregon Consumer Privacy Act (OCPA).

(a) The Oregon Consumer Privacy Act (SB 619, effective July 1, 2024) establishes comprehensive consumer privacy protections for Oregon residents, including rights to access, delete, correct, and obtain copies of personal data, as well as the right to opt out of data processing for targeted advertising, sales of personal data, and profiling.

(b) If either Party processes personal data of Oregon consumers in connection with the Permitted Purpose, such Party shall:

☐ Limit data collection to what is adequate, relevant, and reasonably necessary for the disclosed purpose;

☐ Not process personal data for purposes that are not reasonably necessary to and compatible with the disclosed purposes;

☐ Implement appropriate data security practices;

☐ Not process sensitive data without obtaining the consumer's consent; and

☐ Respond to verified consumer rights requests within the timeframes specified by the OCPA.

(c) The Parties shall cooperate in responding to consumer rights requests that relate to personal data disclosed as part of the Confidential Information.

16.7 No Sales Tax Considerations. The Parties acknowledge that Oregon does not impose a general state sales tax. Accordingly, commercial transactions related to or resulting from the Permitted Purpose will not be subject to Oregon state sales tax, which may affect the valuation and pricing Confidential Information exchanged hereunder.

16.8 Oregon Public Records Exemption. If either Party is an Oregon public body, the Parties acknowledge that trade secrets are conditionally exempt from disclosure under the Oregon Public Records Law pursuant to ORS § 192.345(2). To invoke this exemption, the Disclosing Party must demonstrate that the public interest in nondisclosure clearly outweighs the public interest in disclosure. Each Party shall use reasonable efforts to protect the other Party's Confidential Information from disclosure under public records requests.

16.9 Preservation of Secrecy. In any action under this Agreement, the court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing records, and ordering persons involved in the litigation not to disclose the alleged trade secret without prior court approval, consistent with ORS § 646.469.

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.]

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 Oregon law. Oregon has specific statutory restrictions on non-competition agreements (ORS § 653.295) and comprehensive data privacy requirements (Oregon Consumer Privacy Act). You must have this document reviewed, customized, and approved by a qualified attorney licensed in the State of Oregon 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: 2026-02-27