COLORADO TRADE SECRET PROTECTION AND CONFIDENTIALITY AGREEMENT
[// GUIDANCE: Replace bracketed placeholders with deal-specific information before execution.]
TABLE OF CONTENTS
- Document Header & Recitals
- Definitions
- Operative Provisions
3.1 Purpose; Trade Secret Disclosures
3.2 Confidentiality Obligations
3.3 Standard of Care
3.4 Permitted Disclosures & Required Disclosures
3.5 Exclusions from Confidentiality
3.6 Return or Destruction of Materials - Representations & Warranties
- Covenants & Restrictions
- Default & Remedies
- Risk Allocation
7.1 Indemnification
7.2 Insurance
7.3 Force Majeure - Dispute Resolution
8.1 Governing Law
8.2 Arbitration
8.3 Forum Selection & Jury Trial Waiver
8.4 Injunctive Relief Preservation - General Provisions
- Execution Block
1. DOCUMENT HEADER & RECITALS
THIS COLORADO TRADE SECRET PROTECTION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is made and entered into as of [EFFECTIVE DATE] (the “Effective Date”) by and between:
• [DISCLOSER LEGAL NAME], a [STATE AND ENTITY TYPE] with its principal place of business at [ADDRESS] (“Discloser”); and
• [RECIPIENT LEGAL NAME], a [STATE AND ENTITY TYPE] with its principal place of business at [ADDRESS] (“Recipient”).
Discloser possesses valuable Trade Secrets (as defined below) and other confidential and proprietary information. Recipient desires to receive such information solely for the limited purpose described herein, and Discloser is willing to disclose such information to Recipient subject to the terms, conditions, and restrictions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
2. DEFINITIONS
[// GUIDANCE: Defined terms appear in bold-italic when first used and are capitalized thereafter.]
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party.
“Confidential Information” means all non-public information, whether oral, written, electronic, visual, or in any other form, that (i) is furnished or otherwise made available by or on behalf of Discloser to Recipient or its Representatives, and (ii) is designated as confidential or that a reasonable person should understand to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to Trade Secrets.
“Discloser” has the meaning given in the preamble and includes its Affiliates disclosing Confidential Information.
“Misappropriation” has the meaning assigned to that term under the Colorado Uniform Trade Secrets Act, Colo. Rev. Stat. § 7-74-102(2).
“Party” means either Discloser or Recipient individually; “Parties” means both collectively.
“Purpose” means [DESCRIBE LIMITED PURPOSE, e.g., “evaluating a potential strategic transaction between the Parties”].
“Recipient” has the meaning given in the preamble and includes its Affiliates receiving Confidential Information.
“Representative” means a Party’s employees, officers, directors, partners, members, managers, contractors, advisors, attorneys, accountants, and other agents who have a need to know Confidential Information for the Purpose and are bound by confidentiality obligations no less protective than those contained herein.
“Trade Secret” means information and data that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy, consistent with Colo. Rev. Stat. § 7-74-102(4).
3. OPERATIVE PROVISIONS
3.1 Purpose; Trade Secret Disclosures
Discloser may, in its sole discretion, disclose Confidential Information, including Trade Secrets, to Recipient exclusively for the Purpose. Recipient shall not use the Confidential Information for any other purpose without Discloser’s prior written consent.
3.2 Confidentiality Obligations
a. Recipient shall (i) hold all Confidential Information in strict confidence, (ii) use the Confidential Information solely for the Purpose, and (iii) disclose Confidential Information only to its Representatives who have a strict need to know and who are bound in writing by obligations of confidentiality and limited use at least as protective as those herein.
b. Recipient shall be liable for any breach of this Agreement by its Representatives.
3.3 Standard of Care
Recipient shall protect Confidential Information using the same degree of care it uses to protect its own confidential information of like importance, but in no event less than a commercially reasonable standard of care.
3.4 Permitted Disclosures & Required Disclosures
a. Recipient may disclose Confidential Information to the extent approved in writing by Discloser.
b. If Recipient is required by law, regulation, or valid legal process to disclose any Confidential Information, it shall (i) promptly notify Discloser in writing (unless legally prohibited), (ii) cooperate with Discloser’s lawful efforts to seek protective treatment, and (iii) disclose only that portion of Confidential Information that Recipient’s counsel advises is legally required.
3.5 Exclusions from Confidentiality
Confidential Information does not include information that Recipient can demonstrate by competent written evidence:
i. is or becomes publicly available through no breach of this Agreement;
ii. was lawfully known to Recipient prior to disclosure by Discloser;
iii. is independently developed by Recipient without use of or reference to Confidential Information; or
iv. is rightfully received from a third party without breach of any obligation of confidentiality.
3.6 Return or Destruction of Materials
Upon the earlier of (i) Discloser’s written request or (ii) termination or expiration of this Agreement, Recipient shall promptly return or destroy all tangible embodiments of Confidential Information, certify such destruction in writing, and continue to protect any retained archival copies as Confidential Information for the duration specified in Section 3.2.
4. REPRESENTATIONS & WARRANTIES
4.1 Mutual Representations. Each Party represents and warrants that:
a. it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation;
b. it has the full power and authority to enter into and perform this Agreement; and
c. this Agreement constitutes a legal, valid, and binding obligation enforceable against it in accordance with its terms.
4.2 Discloser’s Additional Representations. Discloser represents that it has the right to disclose the Confidential Information to Recipient for the Purpose. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND DISCLOSER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.
4.3 Survival. The representations and warranties in this Section 4 shall survive for the duration of the confidentiality obligations set forth in Section 3.2.
5. COVENANTS & RESTRICTIONS
5.1 Non-Circumvention. Recipient shall not use Confidential Information to circumvent Discloser in any commercial transaction related to the Purpose without Discloser’s prior written consent.
5.2 Compliance Monitoring. Recipient shall, upon reasonable prior notice and during normal business hours, permit Discloser or its designee to review Recipient’s relevant records solely to verify compliance with this Agreement.
5.3 Notice of Unauthorized Use. Recipient shall promptly notify Discloser upon discovery of any unauthorized use or disclosure of Confidential Information and shall cooperate with Discloser to regain possession and prevent further unauthorized use.
6. DEFAULT & REMEDIES
6.1 Events of Default. Any breach of Sections 3 or 5 constitutes a material default.
6.2 Notice and Cure. Upon default, Discloser shall provide written notice to Recipient specifying the default in reasonable detail. Recipient shall have [CURE PERIOD, e.g., “5 business days”] from receipt to cure, except that breaches involving Misappropriation of Trade Secrets are not subject to cure and entitle Discloser to immediate remedies.
6.3 Graduated Remedies.
a. First breach (curable): written warning and mandatory remedial measures at Recipient’s cost.
b. Second breach (curable): indemnification of all losses plus reimbursement of enforcement costs.
c. Material or non-curable breach: immediate injunctive relief, exemplary damages as permitted under Colo. Rev. Stat. § 7-74-104, and recovery of reasonable attorneys’ fees per Colo. Rev. Stat. § 7-74-105.
7. RISK ALLOCATION
7.1 Indemnification
a. Discloser Indemnity. Discloser shall indemnify, defend, and hold harmless Recipient, its Affiliates, and their respective Representatives against any third-party claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to allegations that the Confidential Information, when used in accordance with this Agreement, infringes or misappropriates any intellectual property rights.
b. Recipient Indemnity. Recipient shall indemnify, defend, and hold harmless Discloser, its Affiliates, and their respective Representatives from and against any third-party claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from (i) Recipient’s breach of this Agreement, or (ii) Recipient’s Misappropriation of Trade Secrets.
[// GUIDANCE: The metadata requires “recipient_protection_duty.” Sub-section (a) fulfills that requirement by protecting Recipient.]
7.2 Insurance
Each Party shall maintain, at its own expense, commercially reasonable insurance (including cyber liability coverage if Confidential Information includes personal data) adequate to cover its obligations under this Agreement and shall furnish certificates of insurance upon request.
7.3 Force Majeure
Neither Party shall be liable for failure to perform under this Agreement (other than payment or confidentiality obligations) to the extent such failure is caused by events beyond its reasonable control, including natural disasters, war, terrorism, governmental action, or widespread utility failures, provided that the affected Party gives prompt written notice and uses diligent efforts to resume performance.
8. DISPUTE RESOLUTION
8.1 Governing Law
This Agreement and any dispute arising hereunder shall be governed by and construed in accordance with the laws of the State of Colorado, including the Colorado Uniform Trade Secrets Act, without regard to conflict-of-laws principles.
8.2 Arbitration
Except for claims seeking injunctive or other equitable relief as provided in Section 8.4, any dispute, controversy, or claim arising out of or relating to this Agreement shall be finally resolved by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules then in effect.
a. Seat & Venue. The seat of arbitration shall be Denver, Colorado.
b. Panel. The tribunal shall consist of one (1) neutral arbitrator with at least ten (10) years’ experience in complex commercial disputes and trade secret law.
c. Consolidation. Related arbitrations may be consolidated per AAA rules.
d. Award. The arbitrator’s award shall be final and binding, and judgment may be entered thereon in any court of competent jurisdiction.
8.3 Forum Selection & Jury Trial Waiver
For any action not subject to arbitration (including actions to compel arbitration or to obtain injunctive relief), the Parties hereby irrevocably submit to the exclusive jurisdiction of the state courts located in Denver County, Colorado. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY SUCH PROCEEDING.
8.4 Injunctive Relief Preservation
Recipient acknowledges that unauthorized disclosure or use of Confidential Information may cause irreparable harm for which monetary damages may be an inadequate remedy. Accordingly, Discloser shall be entitled to seek temporary, preliminary, and permanent injunctive relief, specific performance, or other equitable relief, in addition to all other remedies available, without posting bond or other security to the extent permitted by law.
9. GENERAL PROVISIONS
9.1 Amendment & Waiver. No amendment or waiver of any provision of this Agreement shall be effective unless it is in writing and signed by authorized representatives of both Parties. A waiver on one occasion shall not constitute a waiver on any subsequent occasion.
9.2 Assignment. Neither Party may assign or delegate its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement without such consent to a successor in interest by merger, acquisition, or sale of substantially all assets, provided the assignee assumes all obligations herein in writing. Any unauthorized assignment is void.
9.3 Successors & Assigns. This Agreement shall inure to the benefit of, and be binding upon, the Parties and their respective successors and permitted assigns.
9.4 Severability & Reformation. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect. The Parties agree that such court shall reform any invalid or unenforceable provision to reflect the Parties’ original intent to the maximum extent permitted by law.
9.5 Integration. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter and supersedes all prior or contemporaneous oral or written agreements relating thereto.
9.6 Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together constitute one instrument. Signatures delivered by electronic means (including via PDF or electronic signature platform compliant with the U.S. ESIGN Act) shall be deemed original signatures and fully enforceable.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
| Discloser | Recipient |
|---|---|
| By: ________ | By: ________ |
| Name: [AUTHORIZED SIGNATORY] | Name: [AUTHORIZED SIGNATORY] |
| Title: [TITLE] | Title: [TITLE] |
| Date: ______ | Date: ______ |
[Optional Notary Acknowledgment, if required by internal policy or deal specifics.]
[// GUIDANCE:
1. Confirm that the definition of “Trade Secret” aligns with the latest version of the Colorado Uniform Trade Secrets Act prior to execution.
2. Review Section 7.1 to ensure indemnification aligns with the negotiated business deal—metadata requires protection of Recipient.
3. Adjust cure periods, arbitration administrator, and seat as necessary.
4. Remove or revise force majeure clause if full performance, rather than mere confidentiality, is essential.
5. If personal data is exchanged, add data-privacy provisions compliant with the Colorado Privacy Act (CPA).]