TRADE SECRET PROTECTION AND NON-DISCLOSURE AGREEMENT

(New York Governing Law – Single-Discloser Form)

[// GUIDANCE: Convert to a Mutual NDA by mirroring the Recipient’s obligations to the Discloser and adjusting defined terms accordingly.]

TABLE OF CONTENTS

I. Document Header
II. Definitions
III. Operative Provisions
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block

I. DOCUMENT HEADER

This Trade Secret Protection and Non-Disclosure Agreement (this “Agreement”) is entered into and effective as of [EFFECTIVE DATE] (the “Effective Date”) by and between:

1. [DISCLOSER LEGAL NAME], a [STATE] [entity type] with its principal place of business at [ADDRESS] (“Discloser”); and
2. [RECIPIENT LEGAL NAME], a [STATE] [entity type] with its principal place of business at [ADDRESS] (“Recipient”).

(Each a “Party” and, collectively, the “Parties”).

Recitals

A. Discloser possesses valuable Trade Secrets (as defined below) pertaining to [GENERAL BUSINESS AREA].
B. Recipient desires access to such Trade Secrets solely for the purpose of [DESCRIBE PURPOSE] (the “Permitted Purpose”).
C. The Parties wish to preserve the confidentiality of the Trade Secrets in accordance with New York common law, applicable federal law, and the terms herein.

NOW, THEREFORE, in consideration of the mutual covenants and for other good and valuable consideration, the sufficiency of which is acknowledged, the Parties agree as follows:

II. DEFINITIONS

For purposes of this Agreement, the following terms shall have the meanings set forth below. Definitions appear alphabetically and apply equally to singular and plural forms.

“Affiliate” – any entity directly or indirectly controlling, controlled by, or under common control with a Party, where “control” means ownership of >50% of the voting securities or equivalent.

“Confidential Information” – collectively, (i) Trade Secrets, and (ii) any non-public business, technical, financial, or commercial information disclosed by Discloser that a reasonable person would understand to be confidential, whether disclosed orally, visually, electronically, or in writing, and whether or not marked “confidential.”

“Improper Means” – theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy, electronic intrusion, or any method contrary to honest commercial practice under New York law.

“Misappropriation” – (a) 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 (b) disclosure or use of a Trade Secret without consent by a person who (i) used Improper Means to acquire the Trade Secret; (ii) at the time of disclosure, knew or had reason to know that the Trade Secret was derived from or through a person who used Improper Means; or (iii) owed a duty to maintain its secrecy or limit its use.

“Representatives” – officers, directors, employees, agents, attorneys, accountants, consultants, and financial advisors of Recipient who (i) need to know the Confidential Information for the Permitted Purpose and (ii) are bound by confidentiality obligations at least as protective as those in this Agreement.

“Trade Secret” – information, including technical data, formulas, patterns, compilations, programs, devices, methods, techniques, processes, financial data, or lists of actual or potential customers or suppliers, that (i) 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 (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (See 18 U.S.C. § 1836; New York common law.)

[// GUIDANCE: Adjust definition to include any additional asset categories specific to the engagement (e.g., “machine learning models”).]

III. OPERATIVE PROVISIONS

3.1 Limited Right to Use. Recipient shall use the Confidential Information solely for the Permitted Purpose and for no other purpose whatsoever without Discloser’s prior written consent.

3.2 Access & Handling. Recipient shall:
(a) restrict disclosure of Confidential Information to its Representatives who have a strict need to know;
(b) advise such Representatives of the confidential nature of the information; and
(c) safeguard the Confidential Information using at least the same degree of care as Recipient uses for its own confidential information of like importance, but no less than a commercially reasonable standard of care.

3.3 Exclusions. Obligations in Section 3 do not apply to information that Recipient demonstrates by contemporaneous, written evidence:
(i) is or becomes publicly available through no breach of this Agreement;
(ii) was lawfully in Recipient’s possession before receipt;
(iii) is independently developed without use of or reference to the Confidential Information; or
(iv) is lawfully received from a third party without breach of any duty of confidentiality.

3.4 Compelled Disclosure. If Recipient is required by law, regulation, or valid legal process to disclose any Confidential Information, it shall (i) promptly notify Discloser in writing, (ii) cooperate with Discloser’s lawful efforts to resist or narrow such disclosure, and (iii) disclose only that portion of Confidential Information legally required.

IV. REPRESENTATIONS & WARRANTIES

4.1 Authority. Each Party represents that it has full power and authority to enter into and perform its obligations under this Agreement.

4.2 Ownership. Discloser represents that it has the right to disclose the Confidential Information to Recipient for the Permitted Purpose.

4.3 No Other Warranties. All Confidential Information is provided “AS IS,” and Discloser disclaims all warranties, express or implied, including fitness for a particular purpose or non-infringement, except as expressly stated herein.

4.4 Survival. The representations and warranties in Sections 4.1 and 4.2 survive termination of this Agreement.

V. COVENANTS & RESTRICTIONS

5.1 Non-Reverse Engineering. Recipient shall not analyze, reverse engineer, decompile, disassemble, or otherwise attempt to derive the composition or underlying information of any Trade Secret except as permitted in writing by Discloser.

5.2 No Challenge. Recipient shall not challenge, directly or indirectly, Discloser’s ownership of any Trade Secret.

5.3 Compliance Monitoring. Upon reasonable written notice, Recipient shall certify in writing its compliance with this Agreement and permit Discloser (or an independent auditor bound by confidentiality) to verify such compliance during normal business hours and without undue disruption, not more than once per 12-month period.

5.4 Notice of Misappropriation. Recipient shall promptly notify Discloser in writing upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement.

VI. DEFAULT & REMEDIES

6.1 Events of Default. Any Misappropriation, breach of Section 3, 5, or 8 constitutes a default (“Default”).

6.2 Cure Period. For Defaults capable of cure, Recipient shall have five (5) business days from written notice to cure; however, no cure period applies to intentional Misappropriation or imminent harm to a Trade Secret.

6.3 Injunctive Relief. Recipient acknowledges that Discloser will suffer irreparable harm for which monetary damages are inadequate, and agrees that Discloser shall be entitled to injunctive relief (temporary, preliminary, and permanent) without posting bond, in any court of competent jurisdiction.

6.4 Damages. In addition to injunctive relief, Discloser may recover (i) actual damages, including lost profits and unjust enrichment, (ii) exemplary damages for willful or malicious Misappropriation, and (iii) reasonable attorneys’ fees and expenses.

6.5 Attorneys’ Fees. The prevailing Party in any action to enforce this Agreement is entitled to recover its reasonable attorneys’ fees, costs, and expenses.

VII. RISK ALLOCATION

7.1 Indemnification by Recipient. Recipient shall indemnify, defend, and hold harmless Discloser and its Affiliates, and their respective directors, officers, and employees, from and against any third-party claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to Recipient’s (a) Misappropriation, (b) breach of this Agreement, or (c) violation of applicable law in connection with Confidential Information.

[// GUIDANCE: “Recipient” in this clause implements the requested “recipient_protection_duty.”]

7.2 No Liability Cap. The Parties agree that no contractual cap on liability applies to Recipient’s indemnification obligations or any liability resulting from Misappropriation or breach of confidentiality.

7.3 Insurance. Recipient shall maintain commercially reasonable cyber-risk and general liability insurance adequate to cover its obligations herein and shall provide certificates of insurance upon request.

7.4 Force Majeure. Neither Party is liable for failure to perform due to causes beyond its reasonable control, provided that the affected Party promptly notifies the other and resumes performance as soon as practicable; however, this Section does not excuse any payment or confidentiality obligations.

VIII. DISPUTE RESOLUTION

8.1 Governing Law. This Agreement and any Dispute (defined below) shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict-of-laws principles.

8.2 Negotiation. The Parties shall attempt in good faith to resolve any controversy, claim, or dispute arising out of or relating to this Agreement (“Dispute”) through negotiation between executives with settlement authority.

8.3 Binding Arbitration. If the Dispute is not resolved within thirty (30) days of a Party’s written notice invoking this Section, the Dispute shall be finally resolved by confidential, binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules in effect at the time.
(a) Seat of Arbitration: New York, New York.
(b) Number of Arbitrators: One (1), mutually agreed or appointed by the AAA.
(c) Language: English.
(d) Consolidation: The arbitrator may consolidate related proceedings involving common issues of law or fact.
(e) Award: The arbitral award shall be final and binding and may be entered in any court of competent jurisdiction.

8.4 Carve-Out for Injunctive Relief. Notwithstanding Section 8.3, either Party may seek injunctive or equitable relief for actual or threatened Misappropriation in any New York state court of competent jurisdiction, and the Parties consent to exclusive venue and personal jurisdiction in such courts for that limited purpose.

8.5 Jury Trial Waiver. TO THE EXTENT ANY DISPUTE IS LITIGATED IN COURT, THE PARTIES KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHT TO A TRIAL BY JURY.

IX. GENERAL PROVISIONS

9.1 Term; Survival. This Agreement commences on the Effective Date and continues for [TERM] years, unless terminated earlier as provided herein. Recipient’s obligations with respect to Trade Secrets survive for so long as such information remains a Trade Secret under applicable law, and all other confidentiality obligations survive for [SURVIVAL PERIOD, e.g., 5 YEARS] after termination or expiration.

9.2 Return or Destruction. Upon the earlier of (i) Discloser’s written request or (ii) termination or expiration of this Agreement, Recipient shall promptly (a) cease all use of Confidential Information, and (b) at Discloser’s option, return or destroy all copies thereof, certifying destruction in writing.

9.3 Amendment; Waiver. This Agreement may be amended only by a written instrument signed by both Parties. A waiver of any provision is effective only if in writing and only for the specific instance and purpose given.

9.4 Assignment. Recipient may not assign or delegate its rights or obligations, in whole or in part, without Discloser’s prior written consent; any attempted assignment in violation of this Section is void. This Agreement binds and benefits the Parties and their permitted successors and assigns.

9.5 Severability; Reformation. If any provision is held unenforceable, it shall be reformed to the minimum extent necessary to render it enforceable, and the remainder of the Agreement shall remain in full force and effect.

9.6 Entire Agreement. This Agreement constitutes the entire understanding between the Parties concerning the subject matter and supersedes all prior or contemporaneous communications.

9.7 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts (including PDF and electronic signatures), each of which is deemed an original and together constitute one instrument.

9.8 Notices. All notices must be in writing and delivered (i) by hand, (ii) by nationally recognized overnight courier, or (iii) by registered or certified mail (return receipt requested) to the addresses set forth above (or such other address a Party designates by notice). Notices are effective upon receipt.

9.9 No License. Except for the limited rights expressly granted herein, nothing in this Agreement grants Recipient any right, title, or interest in or to the Confidential Information or any intellectual property of Discloser.

9.10 DTSA Whistleblower Immunity Notice. Pursuant to 18 U.S.C. § 1833(b), an individual shall not be held criminally or civilly liable under any federal or state trade secret law for disclosure of a Trade Secret that (i) is made in confidence to a government official or attorney 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, under seal. An individual who files a lawsuit alleging retaliation for reporting a suspected violation of law may disclose the Trade Secret to counsel and use it in court proceedings, if the filing is under seal and the individual does not disclose the Trade Secret except pursuant to court order.

[// GUIDANCE: Include this clause if any employees or contractors of Recipient will receive Trade Secrets; otherwise delete.]

X. EXECUTION BLOCK

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

[// GUIDANCE: Notarization is generally not required for NDAs under New York law but may be added if desired by the Parties or if the document will be recorded.]

(End of Agreement)