Non-Disclosure Agreement - Mutual (Vermont)

MUTUAL NON-DISCLOSURE AGREEMENT

(VERMONT)

("Agreement")

TABLE OF CONTENTS

1. Document Header & Recitals
2. Definitions
3. Purpose & Scope of Disclosure
4. Confidentiality Obligations
5. Exclusions from Confidential Information
6. Permitted Disclosures
7. Term & Duration
8. Return or Destruction of Materials
9. Remedies
10. DTSA Whistleblower Immunity Notice
11. Intellectual Property — No License Granted
12. Non-Solicitation & Non-Hire
13. Representations & Warranties
14. Indemnification
15. General Provisions
16. Vermont-Specific Provisions
17. Signature Blocks

1. DOCUMENT HEADER & RECITALS

Effective Date: [__/__/____]

This Mutual Non-Disclosure Agreement (the "Agreement") is entered into as of the Effective Date set forth above by and between:

PARTY A:

(hereinafter "Party A" or "Disclosing Party/Receiving Party" as applicable)

PARTY B:

(hereinafter "Party B" or "Disclosing Party/Receiving Party" as applicable)

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

RECITALS

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

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

WHEREAS, in connection with the Permitted Purpose, each Party may disclose Confidential Information (as defined below) to the other Party;

WHEREAS, the Parties wish to establish the terms and conditions under which such Confidential Information will be disclosed, received, and protected, in accordance with the laws of the State of Vermont, including the Vermont Trade Secrets Act (9 V.S.A. § 4601 et seq.) and the federal Defend Trade Secrets Act (18 U.S.C. § 1836 et seq.);

NOW, THEREFORE, in consideration of the mutual covenants and agreements 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 that Party, where "control" means the ownership of fifty percent (50%) or more of the voting securities or equivalent ownership interest.

2.2 "Confidential Information" means all non-public, proprietary, or confidential information disclosed by a Disclosing Party (or its Affiliates, Representatives, or agents) to a Receiving Party, whether before or after the Effective Date, in any form or medium, including but not limited to:

(a) Business Information: business plans, strategies, forecasts, projections, budgets, financial statements, financial data, pricing information, cost structures, profit margins, revenue models, marketing plans, sales data, customer lists, supplier lists, vendor agreements, distribution methods, and market analyses;

(b) Technical Information: inventions (whether or not patentable), discoveries, improvements, innovations, trade secrets, know-how, techniques, processes, formulas, compositions, algorithms, software (source code and object code), firmware, hardware designs, specifications, schematics, blueprints, prototypes, models, test data, research and development plans, and engineering data;

(c) Product Information: product roadmaps, product designs, product specifications, manufacturing processes, quality control procedures, packaging designs, and supply chain information;

(d) Personnel Information: employee records, compensation data, organizational charts, personnel policies, and information subject to applicable Vermont privacy laws;

(e) Legal Information: pending or threatened litigation, regulatory matters, intellectual property portfolios, patent applications, trademark strategies, licensing arrangements, and compliance programs;

(f) Operational Information: operational procedures, security protocols, IT infrastructure, network configurations, disaster recovery plans, and business continuity plans;

(g) Trade Secrets: any information that qualifies as a "trade secret" under the Vermont Trade Secrets Act (9 V.S.A. § 4601(3)), meaning information, including a formula, pattern, compilation, program, device, method, technique, or process, 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; and

(h) Any other information that is marked or designated as "Confidential," "Proprietary," "Trade Secret," or words of similar import, or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure.

2.3 "Data Broker" has the meaning set forth in 9 V.S.A. § 2430, referring to a business that knowingly collects and sells or licenses to third parties the brokered personal information of a consumer with whom the business does not have a direct relationship.

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

2.5 "Misappropriation" has the meaning ascribed to such term under 9 V.S.A. § 4601(2), 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.

2.6 "Receiving Party" means the Party (or its Affiliate) receiving Confidential Information from the other Party.

2.7 "Representatives" means a Party's and its Affiliates' directors, officers, employees, agents, consultants, advisors (including attorneys, accountants, and financial advisors), independent contractors, and potential financing sources who have a legitimate need to know the Confidential Information for the Permitted Purpose.

2.8 "Trade Secret" means information meeting the definition set forth in both: (i) the Vermont Trade Secrets Act (9 V.S.A. § 4601(3)); and (ii) the Defend Trade Secrets Act of 2016 (18 U.S.C. § 1839(3)).

3. PURPOSE & SCOPE OF DISCLOSURE

3.1 Permitted Purpose. Confidential Information disclosed under this Agreement shall be used by the Receiving Party solely for the purpose of: [________________________________] (the "Permitted Purpose").

3.2 Scope. This Agreement applies to all Confidential Information exchanged between the Parties, whether disclosed orally, in writing, electronically, visually, or by any other means, and whether disclosed before or after the Effective Date, provided that information disclosed prior to the Effective Date is treated as Confidential Information hereunder.

3.3 No Obligation to Disclose. Nothing in this Agreement obligates either Party to disclose any particular Confidential Information. Each Party retains sole discretion over what information it chooses to disclose.

3.4 No Obligation to Transact. Neither Party shall have any obligation to enter into any further agreement, transaction, or business relationship with the other Party as a result of this Agreement.

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 it uses to protect its own confidential information of similar nature and importance, and in no event less than a commercially reasonable degree of care;

(b) Use the Confidential Information solely for the Permitted Purpose and for no other purpose whatsoever;

(c) Not disclose, publish, disseminate, or otherwise make available any Confidential Information to any third party, except as expressly permitted under this Agreement;

(d) Restrict internal access to Confidential Information to only those Representatives who have a legitimate need to know such information for the Permitted Purpose;

(e) Ensure that all Representatives who receive access to Confidential Information are informed of the confidential nature thereof and are bound by confidentiality obligations no less restrictive than those contained in this Agreement, whether by written agreement, professional obligation, or fiduciary duty; and

(f) Be responsible and liable for any breach of this Agreement by any of its Representatives.

4.2 Marking of Information. The Disclosing Party should mark written or electronic Confidential Information as "Confidential," "Proprietary," or with similar designation. For oral or visual disclosures, the Disclosing Party shall identify the information as confidential at the time of disclosure and confirm in writing within fifteen (15) business days. Failure to mark shall not diminish the obligations of the Receiving Party with respect to information that a reasonable person would recognize as confidential.

4.3 Security Measures. The Receiving Party shall implement and maintain appropriate administrative, technical, and physical safeguards to protect Confidential Information from unauthorized access, use, disclosure, alteration, or destruction, consistent with industry best practices and applicable Vermont law, including the Vermont Security Breach Notice Act (9 V.S.A. § 2435).

4.4 Notification of Breach. The Receiving Party shall immediately notify the Disclosing Party in writing upon discovery of any unauthorized access, use, disclosure, or loss of Confidential Information and shall:

(a) Cooperate fully with the Disclosing Party in investigating the breach;

(b) Take all reasonable steps to mitigate the effects of the breach;

(c) Assist the Disclosing Party in complying with any applicable data breach notification obligations under Vermont law; and

(d) Preserve all relevant evidence relating to the breach.

5. EXCLUSIONS FROM CONFIDENTIAL INFORMATION

5.1 Exclusions. The obligations of confidentiality and non-use set forth in this Agreement shall not apply to information that the Receiving Party can demonstrate by clear and convincing evidence, supported by contemporaneous written records:

(a) Public Knowledge. Was publicly available or in the public domain at the time of disclosure, or subsequently becomes publicly available through no fault, act, or omission of the Receiving Party or its Representatives;

(b) Prior Possession. Was already in the possession of the Receiving Party at the time of disclosure, without restriction as to use or disclosure, and was not acquired directly or indirectly from the Disclosing Party;

(c) Independent Development. Was independently developed by the Receiving Party or its Representatives without use of, reference to, or reliance upon any of the Disclosing Party's Confidential Information, as evidenced by written records created contemporaneously with such independent development;

(d) Third-Party Source. Was received by the Receiving Party from a third party who had a lawful right to disclose such information without breach of any obligation of confidentiality owed to the Disclosing Party; or

(e) Written Approval. Was approved for release or disclosure by the Disclosing Party in a prior written authorization specifically identifying the information.

5.2 Burden of Proof. The burden of establishing any exclusion under this Section 5 rests with the Receiving Party.

5.3 Combination of Information. Specific elements of Confidential Information shall not be deemed to fall within any exclusion merely because the individual elements are publicly available or in the Receiving Party's possession if the specific combination, compilation, or arrangement of those elements is not publicly available or in the Receiving Party's possession.

6. PERMITTED DISCLOSURES

6.1 Legally Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law, regulation, legal process, subpoena, civil investigative demand, or order of any court, government agency, or regulatory body to disclose any Confidential Information, the Receiving Party shall:

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

(b) Reasonably cooperate with the Disclosing Party (at the Disclosing Party's expense) in seeking such protective order or other remedy;

(c) Disclose only that portion of the Confidential Information that is legally required to be disclosed; and

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

6.2 Regulatory Disclosures. Disclosure of Confidential Information to governmental or regulatory authorities (including the Vermont Attorney General) as required by applicable law shall not constitute a breach of this Agreement, provided that the Receiving Party complies with the procedures set forth in Section 6.1 to the extent practicable.

6.3 Professional Advisors. The Receiving Party may disclose Confidential Information to its legal counsel, accountants, and other professional advisors who are bound by professional duties of confidentiality, provided such disclosure is reasonably necessary for the Permitted Purpose.

7. TERM & DURATION

7.1 Term of Agreement. This Agreement shall commence on the Effective Date and shall remain in effect for a period of:

☐ [____] months from the Effective Date
☐ [____] years from the Effective Date
☐ Until terminated by either Party upon [____] days' prior written notice
☐ Other: [________________________________]

(the "Term"), unless earlier terminated as provided herein.

7.2 Termination. Either Party may terminate this Agreement at any time upon [____] days' prior written notice to the other Party. Termination shall not affect the confidentiality obligations with respect to Confidential Information disclosed prior to the effective date of termination.

7.3 Survival of Obligations. The confidentiality and non-use obligations set forth in this Agreement shall survive the expiration or termination of this Agreement as follows:

(a) For Confidential Information that does not constitute a Trade Secret: for a period of [____] years following the expiration or termination of this Agreement (recommended: three (3) to five (5) years);

(b) For Trade Secrets: for so long as such information continues to qualify as a trade secret under applicable law, including the Vermont Trade Secrets Act (9 V.S.A. § 4601(3)) and the Defend Trade Secrets Act (18 U.S.C. § 1839(3)), without limitation as to time.

7.4 Post-Termination Obligations. Upon expiration or termination of this Agreement, the obligations set forth in Section 8 (Return or Destruction of Materials) shall become immediately effective.

8. RETURN OR DESTRUCTION OF MATERIALS

8.1 Return or Destruction. Upon the earlier of (a) written request by the Disclosing Party, or (b) expiration or termination of this Agreement, the Receiving Party shall promptly (and in no event later than fifteen (15) business days):

(a) Return to the Disclosing Party all originals, copies, reproductions, and summaries of Confidential Information in any form or medium; or

(b) At the Disclosing Party's written election, destroy all such Confidential Information and provide a written certification of destruction executed by an authorized officer of the Receiving Party.

8.2 Retained Copies. Notwithstanding Section 8.1, the Receiving Party may retain:

(a) One (1) archival copy of the Confidential Information solely for legal compliance and dispute resolution purposes, stored securely with restricted access;

(b) Copies of Confidential Information contained in automated electronic backup or disaster recovery systems, provided the Receiving Party uses commercially reasonable efforts to purge such copies upon the next scheduled backup rotation; and

(c) Copies retained by legal counsel as required by applicable law or professional obligation.

All retained copies shall remain subject to the confidentiality and non-use obligations of this Agreement for the applicable survival period set forth in Section 7.3.

8.3 Residual Knowledge. Nothing in this Agreement shall restrict either Party from using any general knowledge, skills, and experience retained in the unaided memories of its Representatives who had authorized access to Confidential Information, provided that such use does not involve the disclosure of specific Confidential Information or Trade Secrets.

9. REMEDIES

9.1 Irreparable Harm. The Parties acknowledge and agree that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to the Disclosing Party for which monetary damages alone would be an insufficient remedy.

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 and permanent injunctive relief, and specific performance, in any court of competent jurisdiction in the State of Vermont, without the necessity of:

(a) Proving actual damages;
(b) Posting any bond or other security (or, if a bond is required by applicable law, a nominal bond shall suffice); or
(c) Demonstrating the inadequacy of monetary damages.

Such equitable relief shall be in addition to, and not in lieu of, any other remedies available at law or in equity.

9.3 Monetary Damages. In addition to equitable relief, the non-breaching Party shall be entitled to recover from the breaching Party:

(a) Actual damages, including all direct and consequential damages proximately caused by the breach;

(b) Unjust enrichment damages caused by the misappropriation, as provided under 9 V.S.A. § 4603;

(c) In lieu of actual damages, the court may impose a reasonable royalty for the unauthorized use of the Trade Secret, as provided under 9 V.S.A. § 4603(a);

(d) In the case of willful and malicious misappropriation, exemplary damages in an amount not exceeding twice the actual damages, as authorized by 9 V.S.A. § 4603(b);

(e) Reasonable attorneys' fees, as authorized by 9 V.S.A. § 4604 in the case of willful and malicious misappropriation, bad faith claims, or bad faith motions to terminate an injunction; and

(f) Prejudgment interest at the rate permitted under Vermont law (12% per annum under 9 V.S.A. § 41a, unless otherwise specified by contract or statute).

9.4 Cumulative Remedies. All remedies under this Agreement are cumulative and not exclusive. No exercise of any remedy shall preclude the exercise of any other remedy available under this Agreement, at law, or in equity.

9.5 Federal Remedies. In addition to state-law remedies, the Disclosing Party may pursue remedies under the Defend Trade Secrets Act (18 U.S.C. § 1836 et seq.), including ex parte seizure orders in extraordinary circumstances.

10. DTSA WHISTLEBLOWER IMMUNITY NOTICE

NOTICE REQUIRED BY THE DEFEND TRADE SECRETS ACT OF 2016 (18 U.S.C. § 1833(b)):

(a) IMMUNITY. 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: (i) is made in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

(b) 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 trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual: (i) files any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order.

Each Party acknowledges that it has received and understands this Notice, and each Party shall include a similar notice in any agreement or policy governing the use of trade secrets or confidential information with its employees, contractors, and consultants, as required by 18 U.S.C. § 1833(b).

11. INTELLECTUAL PROPERTY — NO LICENSE GRANTED

11.1 Ownership. All Confidential Information shall remain the sole and exclusive property of the Disclosing Party. Nothing in this Agreement shall be construed as granting any rights, by license or otherwise, to the Receiving Party in or to any Confidential Information, except for the limited right to use such information for the Permitted Purpose during the Term.

11.2 No License. No license, express or implied, is granted under this Agreement to the Receiving Party under any patent, copyright, trademark, trade secret, or other intellectual property right of the Disclosing Party, whether by estoppel, implication, or otherwise.

11.3 Inventions. Any inventions, improvements, discoveries, or works of authorship conceived or developed by the Receiving Party using or incorporating the Disclosing Party's Confidential Information shall be the sole property of the Disclosing Party, unless otherwise agreed in a separate written agreement.

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

12. NON-SOLICITATION & NON-HIRE

12.1 Applicability. The following provisions apply as indicated by the Parties:

☐ Non-Solicitation Included — The provisions of this Section 12 apply to this Agreement.
☐ Non-Solicitation Excluded — The provisions of this Section 12 do not apply; proceed to Section 13.

12.2 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 induce, or attempt to solicit, recruit, hire, or induce, any employee, independent contractor, or consultant of the other Party who was introduced to, or about whom the soliciting Party learned Confidential Information through, the Permitted Purpose, without the prior written consent of the other Party.

12.3 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, contact, or attempt to solicit or contact any customer, client, vendor, or business partner of the other Party for the purpose of diverting or taking away business, where the identity of or Confidential Information about such customer, client, vendor, or partner was obtained through the Permitted Purpose.

12.4 Exceptions. Section 12.2 shall not apply to:

(a) General solicitations of employment (including advertisements, job postings, or recruitment campaigns) not specifically directed at the other Party's employees;

(b) Responses to unsolicited inquiries from employees of the other Party; or

(c) Any individual who has ceased employment with the other Party for at least six (6) months prior to the solicitation.

12.5 Vermont Non-Compete Law Notice. THE PARTIES ACKNOWLEDGE THAT VERMONT COURTS GENERALLY DISFAVOR NON-COMPETE AGREEMENTS AND WILL ENFORCE RESTRICTIVE COVENANTS ONLY IF THEY ARE REASONABLE IN TIME, GEOGRAPHICAL AREA, AND SCOPE OF ACTIVITY, AND NECESSARY TO PROTECT LEGITIMATE BUSINESS INTERESTS SUCH AS TRADE SECRETS, PROPRIETARY INFORMATION, GOODWILL, AND CUSTOMER RELATIONSHIPS. VERMONT LAW DISTINGUISHES BETWEEN NON-COMPETE AGREEMENTS AND NONDISCLOSURE AGREEMENTS THAT PROTECT TRADE SECRETS (AS DEFINED IN 9 V.S.A. § 4601) OR CONFIDENTIAL BUSINESS INFORMATION. THIS AGREEMENT IS A NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT AND IS NOT A NON-COMPETE COVENANT. THE RESTRICTIONS IN THIS SECTION ARE NARROWLY TAILORED NON-SOLICITATION PROVISIONS.

13. REPRESENTATIONS & WARRANTIES

13.1 Authority. Each Party represents and warrants that:

(a) It is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization;

(b) It has full power and authority to execute, deliver, and perform this Agreement;

(c) The execution and performance of this Agreement will not conflict with or violate any other agreement, obligation, order, or law to which it is subject;

(d) The person executing this Agreement on its behalf has been duly authorized to do so; and

(e) This Agreement constitutes a valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, and similar laws affecting creditors' rights generally.

13.2 Rightful Possession. Each Party, as Disclosing Party, represents and warrants that it has the right to disclose the Confidential Information provided hereunder and that such disclosure does not violate any third-party rights or obligations.

13.3 No Warranty of Accuracy. CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" AND WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. NEITHER PARTY SHALL BE LIABLE FOR ANY ERRORS OR OMISSIONS IN, OR FOR ANY DECISIONS MADE OR ACTIONS TAKEN IN RELIANCE ON, ANY CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER.

13.4 Compliance Representation. Each Party represents that it shall comply with all applicable federal, state, and local laws, rules, and regulations in connection with the receipt, storage, use, and disclosure of Confidential Information, including but not limited to the Vermont Consumer Protection Act (9 V.S.A. § 2451 et seq.) and the Vermont Data Broker Regulation (9 V.S.A. § 2430 et seq.).

14. INDEMNIFICATION

14.1 Mutual Indemnification. Each Party (as "Indemnifying Party") shall indemnify, defend, and hold harmless the other Party and its Affiliates, and their respective directors, officers, employees, agents, successors, and assigns (collectively, "Indemnified Parties") from and against any and all claims, demands, actions, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and court costs) ("Losses") arising out of or related to:

(a) Any breach of this Agreement by the Indemnifying Party or its Representatives;

(b) Any misappropriation of Confidential Information or Trade Secrets by the Indemnifying Party or its Representatives;

(c) Any breach of the Indemnifying Party's representations or warranties under this Agreement; or

(d) Any negligent or wrongful act or omission of the Indemnifying Party or its Representatives in connection with the handling of Confidential Information.

14.2 Indemnification Procedure. The Indemnified Parties 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 of the defense and settlement of such claim (provided that the Indemnifying Party shall not settle any claim that imposes obligations on the Indemnified Parties without their prior written consent); and

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

14.3 Limitation. Failure to provide timely notice under Section 14.2(a) shall not relieve the Indemnifying Party of its obligations except to the extent such failure materially prejudices the Indemnifying Party's ability to defend the claim.

15. GENERAL PROVISIONS

15.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Vermont, without regard to its conflict-of-laws principles. The federal Defend Trade Secrets Act (18 U.S.C. § 1836 et seq.) shall apply as an additional and concurrent basis for trade secret protection.

15.2 Forum Selection. The Parties irrevocably submit to the exclusive jurisdiction of the state courts of Vermont located in [________________________________] County, or the United States District Court for the District of Vermont, for any action, suit, or proceeding arising out of or relating to this Agreement. Each Party waives any objection to venue or jurisdiction, including any objection based on forum non conveniens.

15.3 Arbitration. Except for actions seeking injunctive or other equitable relief under Section 9:

☐ Arbitration Applies. Any dispute arising out of or relating to this Agreement shall be resolved by binding arbitration administered by [________________________________] under its [________________________________] Rules then in effect. The arbitration shall be conducted by a single arbitrator in [________________________________], Vermont. The arbitrator's decision shall be final and binding, and judgment on the award may be entered in any court of competent jurisdiction. The arbitration proceedings and award shall be confidential.

☐ Arbitration Does Not Apply. All disputes shall be resolved by litigation in the courts identified in Section 15.2.

15.4 Jury Trial Waiver. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

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

15.6 Amendments. 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.

15.7 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving Party. No failure or delay in exercising any right shall operate as a waiver thereof.

15.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, or if such modification is not possible, shall be severed from this Agreement, and the remaining provisions shall continue in full force and effect.

15.9 Assignment. Neither Party may assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, except that either Party may assign this Agreement without such consent to a successor in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets, provided the assignee agrees in writing to be bound by the terms of this Agreement. Any attempted assignment in violation of this Section shall be void.

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

15.11 Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given when:

(a) Delivered personally;
(b) Sent by nationally recognized overnight courier (delivery charges prepaid);
(c) Sent by certified or registered mail, return receipt requested, postage prepaid; or
(d) Sent by email with confirmation of receipt (excluding automated replies).

Notices shall be addressed to the Parties at the addresses set forth in Section 1, or at such other address as a Party may designate by written notice. Notices shall be effective: (i) upon receipt if delivered personally; (ii) one (1) business day after deposit with an overnight courier; (iii) three (3) business days after deposit in the mail; or (iv) upon confirmed receipt if sent by email.

15.12 Counterparts & Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures delivered by electronic means (including PDF, DocuSign, or other reliable e-signature platforms) shall be deemed original signatures and shall be binding upon the Parties in accordance with the Vermont Uniform Electronic Transactions Act (9 V.S.A. § 270 et seq.).

15.13 No Agency or Partnership. Nothing in this Agreement shall be construed to create a joint venture, partnership, agency, fiduciary, or employment relationship between the Parties.

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

15.15 Construction. This Agreement shall be construed without regard to any presumption or rule requiring construction against the drafting Party. The headings are for convenience only. "Include," "includes," and "including" mean "including without limitation."

15.16 Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their permitted successors and assigns. Nothing in this Agreement shall confer any rights upon any third party.

16. VERMONT-SPECIFIC PROVISIONS

16.1 Vermont Trade Secrets Act. This Agreement is intended to supplement, and not to displace, the protections available under the Vermont Trade Secrets Act (9 V.S.A. § 4601 et seq.). In the event of any conflict between this Agreement and the Vermont Trade Secrets Act, the provision providing greater protection to the Disclosing Party shall control, to the extent permitted by law.

16.2 Statute of Limitations. The Parties acknowledge that under 9 V.S.A. § 4607, the statute of limitations for an action for misappropriation of trade secrets is 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 Parties agree not to assert any defense based on a statute of limitations shorter than three (3) years for claims arising under this Agreement.

16.3 Vermont Trade Secrets Act Remedies. In addition to the general remedies set forth in Section 9, the Parties acknowledge that:

(a) 9 V.S.A. § 4602 authorizes injunctive relief for actual or threatened misappropriation, including affirmative acts to protect trade secrets, and in appropriate circumstances an injunction may be conditioned on payment of a reasonable royalty;

(b) 9 V.S.A. § 4603(a) provides for recovery of actual damages, including damages for unjust enrichment, or in lieu thereof, a reasonable royalty;

(c) 9 V.S.A. § 4603(b) authorizes exemplary damages not exceeding twice the actual damages for willful and malicious misappropriation;

(d) 9 V.S.A. § 4604 authorizes an award of reasonable attorneys' fees to the prevailing party for willful and malicious misappropriation, bad faith claims, or bad faith motions to terminate an injunction; and

(e) The Vermont Trade Secrets Act displaces conflicting tort, restitutionary, and other state law providing civil remedies for misappropriation (9 V.S.A. § 4606), but does not affect contractual remedies, other civil remedies not based on misappropriation, or criminal remedies (9 V.S.A. § 4608).

16.4 Non-Compete Agreements in Vermont. The Parties acknowledge the following regarding Vermont restrictive covenant law:

(a) Vermont courts generally disfavor non-compete agreements and will enforce them only if they are reasonable in duration, geographic scope, and scope of activity restrained;

(b) Vermont law distinguishes between: (i) non-compete agreements (subject to strict scrutiny), (ii) nondisclosure agreements protecting trade secrets or confidential business information (which are generally enforceable), and (iii) non-solicitation agreements (enforceable if reasonable in time, area, and scope);

(c) Vermont has considered but has not yet enacted a comprehensive ban on non-compete agreements (as of the date of this Agreement); H.205 (2025-2026 session) proposed restricting non-competes but has not been enacted;

(d) This Agreement is a non-disclosure and non-solicitation agreement and is not subject to the heightened scrutiny applicable to non-compete covenants; and

(e) Any provisions of this Agreement that might be construed as restrictive covenants are narrowly tailored to protect the legitimate business interests of protecting trade secrets and confidential information.

16.5 Vermont Data Broker Regulation. To the extent that either Party qualifies as a "data broker" under 9 V.S.A. § 2430, or the Confidential Information includes consumer personal information subject to Vermont's data broker laws:

(a) The applicable Party shall comply with all registration and disclosure requirements under the Vermont Data Broker Act;

(b) The Receiving Party shall implement a comprehensive information security program that contains administrative, technical, and physical safeguards for the protection of personal information;

(c) Data brokers must annually register with the Vermont Secretary of State and provide information about their data collection practices;

(d) The Receiving Party shall not engage in the sale or licensing of brokered personal information that was obtained as Confidential Information under this Agreement; and

(e) Violations of the Data Broker Act are subject to enforcement by the Vermont Attorney General as unfair or deceptive acts under the Vermont Consumer Protection Act.

16.6 Vermont Data Breach Notification. In the event of a security breach involving personally identifiable information as defined under Vermont law (9 V.S.A. § 2430), the Receiving Party shall:

(a) Notify the Disclosing Party immediately upon discovery;

(b) Notify affected Vermont residents in the most expedient time possible and without unreasonable delay, but in no event later than forty-five (45) days after discovery or notification of the breach;

(c) Notify the Vermont Attorney General and, if applicable, the Department of Financial Regulation;

(d) Include in the notification: a description of the incident, the type of personal information involved, steps taken to protect the information, contact information for the entity, and advice on steps the consumer can take; and

(e) Offer credit monitoring services for a minimum of one year where social security numbers are compromised.

16.7 Vermont Consumer Protection Act. Conduct that violates the confidentiality obligations of this Agreement may also constitute an unfair or deceptive act or practice under the Vermont Consumer Protection Act (9 V.S.A. § 2451 et seq.), potentially entitling the aggrieved Party to additional remedies, including treble damages and attorneys' fees, where applicable.

16.8 Vermont Uniform Electronic Transactions Act. This Agreement may be executed and delivered electronically in accordance with the Vermont Uniform Electronic Transactions Act (9 V.S.A. § 270 et seq.), and electronic signatures shall have the same legal effect as original signatures.

16.9 Vermont Single Federal District. The Parties acknowledge that Vermont has a single federal judicial district (the United States District Court for the District of Vermont, located in Burlington and Brattleboro), and any federal action under this Agreement shall be brought in that district.

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

[________________________________]

[________________________________]

[________________________________]

EXHIBIT B — ADDITIONAL TERMS OR SPECIAL CONDITIONS

☐ Not Applicable

☐ The following additional terms apply:

[________________________________]

[________________________________]

[________________________________]

SOURCES AND REFERENCES

• Vermont Trade Secrets Act: 9 V.S.A. § 4601 et seq. — https://legislature.vermont.gov/statutes/section/09/143/04601
• Vermont Data Broker Regulation: 9 V.S.A. § 2430 et seq. — https://legislature.vermont.gov/statutes/section/09/062/02430
• Vermont Security Breach Notice Act: 9 V.S.A. § 2435
• Vermont Consumer Protection Act: 9 V.S.A. § 2451 et seq.
• Defend Trade Secrets Act of 2016: 18 U.S.C. § 1836 et seq.
• DTSA Whistleblower Immunity: 18 U.S.C. § 1833(b)
• Vermont Uniform Electronic Transactions Act: 9 V.S.A. § 270 et seq.

This document is provided for informational purposes only and does not constitute legal advice. Consult a qualified attorney licensed in the State of Vermont before executing this Agreement.

(c) 2026 All rights reserved.