WASHINGTON STATE
TRADE SECRET NON-DISCLOSURE & PROTECTION AGREEMENT
(“Agreement”)
[// GUIDANCE: Provide this template to clients in editable format. Replace bracketed placeholders, delete guidance comments, and tailor defined terms, timelines, and economic provisions to the specific transaction.]
TABLE OF CONTENTS
- document header
- definitions
- operative provisions
3.1 confidentiality & use restrictions
3.2 standard of care
3.3 return / destruction obligations - representations & warranties
- covenants & restrictions
- default & remedies
- risk allocation
- dispute resolution
- general provisions
- execution block
(Page numbers intentionally omitted in this template.)
1. DOCUMENT HEADER
1.1 Effective Date. This Agreement is entered into and made effective as of [DATE] (the “Effective Date”).
1.2 Parties.
(a) “[DISCLOSING PARTY]”, a [entity type & jurisdiction] with its principal place of business at [ADDRESS] (“Discloser”); and
(b) “[RECIPIENT]”, a [entity type & jurisdiction] with its principal place of business at [ADDRESS] (“Recipient”). Discloser and Recipient are each a “Party” and collectively the “Parties.”
1.3 Recitals.
A. Discloser possesses valuable Trade Secrets (defined below).
B. Recipient desires to receive and use certain Trade Secrets solely for the limited purpose of [PROJECT / TRANSACTION DESCRIPTION] (the “Purpose”).
C. In consideration of the mutual promises herein, and other good and valuable consideration, the sufficiency of which is acknowledged, the Parties agree as follows.
2. DEFINITIONS
The following terms are used throughout this Agreement. All definitions apply equally to the singular and plural forms. Capitalized terms not otherwise defined have the meanings ascribed elsewhere in this Agreement.
“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 ownership of at least fifty percent (50 %) of the voting interests.
“Confidential Information” means any non-public information of Discloser that (i) is designated as confidential or proprietary, or (ii) a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure, whether oral, written, electronic, visual, or in any other form. Confidential Information includes Trade Secrets but is broader in scope.
“Misappropriation” has the meaning set forth in Wash. Rev. Code § 19.108.010(2).
“Recipient Personnel” means Recipient’s employees, officers, directors, agents, contractors, and advisors who (i) have a strict need to know the Trade Secrets for the Purpose and (ii) are bound by written obligations of confidentiality at least as protective as those herein.
“Residuals” means information that is retained in the unaided memory of Recipient Personnel who have had access to Trade Secrets, without reference to or reliance upon any tangible or electronic embodiments.
“Trade Secret” means information 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, each as further defined in Wash. Rev. Code § 19.108.010(4).
[// GUIDANCE: Insert additional deal-specific definitions here.]
3. OPERATIVE PROVISIONS
3.1 Confidentiality & Use Restrictions.
(a) Non-Disclosure. Recipient shall hold all Confidential Information in strict confidence and shall not disclose it to any third party except as expressly permitted by this Agreement.
(b) Use Limitation. Recipient shall use Confidential Information solely for the Purpose and for no other purpose whatsoever.
(c) Residuals. Use of Residuals shall not constitute Misappropriation, provided that Recipient-retained Residuals do not contain any express Trade Secret and Recipient complies with Section 3.2.
3.2 Standard of Care. Recipient shall protect Confidential Information with at least the same degree of care it uses to protect its own confidential information of like importance, and in no event less than a commercially reasonable standard of care.
3.3 Return / Destruction. Upon the earlier of (i) Discloser’s written request or (ii) termination or expiration of this Agreement, Recipient shall promptly return or, at Discloser’s option, destroy all tangible embodiments of Confidential Information and certify such destruction in writing, except that one archival copy may be retained solely for compliance purposes.
3.4 Exclusions. Confidential Information does not include information that Recipient can demonstrate by contemporaneous written evidence: (i) is or becomes publicly available without breach of this Agreement; (ii) was lawfully known to Recipient prior to disclosure by Discloser; (iii) is rightfully obtained from a third party without restriction; or (iv) is independently developed without reference to or use of Discloser’s Confidential Information.
3.5 No Implied License. Except for the limited rights expressly granted herein, no license or other rights, whether by implication, estoppel, or otherwise, are granted under any intellectual-property rights of either Party.
3.6 Export Controls. Recipient shall not export, re-export, or transfer any Confidential Information in violation of applicable export-control laws.
4. REPRESENTATIONS & WARRANTIES
4.1 Mutual. 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 full power and authority to enter into and perform its obligations under this Agreement; and
(c) its execution, delivery, and performance of this Agreement do not conflict with any other contract to which it is a party.
4.2 Discloser. Discloser represents that it has the right to disclose the Confidential Information to Recipient for the Purpose.
4.3 Survival. The warranties in this Section 4 survive the expiration or termination of this Agreement.
5. COVENANTS & RESTRICTIONS
5.1 Compliance. Recipient shall ensure that all Recipient Personnel comply with the terms of this Agreement and shall be liable for any breach by them.
5.2 Notice Obligations. Recipient shall promptly notify Discloser in writing of any (i) unauthorized use or disclosure of Confidential Information, or (ii) legal process that compels disclosure, and shall reasonably cooperate with Discloser’s efforts to protect Confidential Information consistent with applicable law.
5.3 Equitable Audits. Upon reasonable prior notice, Discloser may audit Recipient’s compliance with this Agreement, provided that audits (i) occur no more than once per twelve (12)-month period absent cause, (ii) are conducted during normal business hours, and (iii) are limited to facilities and systems reasonably expected to store Confidential Information.
6. DEFAULT & REMEDIES
6.1 Event of Default. Any Misappropriation or material breach of Section 3 constitutes an “Event of Default.”
6.2 Cure Period. Where capable of cure, Recipient shall have five (5) calendar days from receipt of written notice to remedy any Event of Default before further remedies accrue.
6.3 Injunctive Relief. Recipient acknowledges that (i) Trade Secrets are unique and valuable assets; (ii) Misappropriation would cause irreparable harm; and (iii) monetary damages alone are inadequate. Accordingly, Discloser is entitled to immediate temporary, preliminary, and permanent injunctive relief under Wash. Rev. Code § 19.108.020, without bond to the maximum extent permitted by law.
6.4 Damages. Subject to Section 6.5, Discloser may recover damages for Misappropriation as provided in Wash. Rev. Code § 19.108.030, including exemplary damages for willful and malicious misappropriation and reasonable attorney’s fees under § 19.108.040.
6.5 No Liability Cap. The Parties agree that no limitation of liability applies to Recipient’s breach of Section 3 or its indemnity obligations.
6.6 Attorneys’ Fees. The prevailing Party in any action to enforce this Agreement is entitled to recover reasonable attorneys’ fees and costs, including expert-witness fees, in addition to any other relief.
7. RISK ALLOCATION
7.1 Indemnification by Recipient. Recipient shall, at its sole cost, defend, indemnify, and hold harmless Discloser and its Affiliates, and their respective officers, directors, employees, and agents (“Discloser Indemnitees”) from and against any and all third-party claims, losses, liabilities, damages, judgments, penalties, fines, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to:
(a) Recipient’s Misappropriation of Trade Secrets or other breach of this Agreement; or
(b) negligent, reckless, or intentional acts or omissions of Recipient or Recipient Personnel.
7.2 Insurance. [OPTIONAL – Delete if inapplicable.] Recipient shall maintain, at its own expense, commercial general liability and cyber-liability insurance, each with limits of not less than [AMOUNT], naming Discloser Indemnitees as additional insureds.
7.3 Force Majeure. A Party is excused from performance to the extent delayed or prevented by causes beyond its reasonable control (excluding payment obligations), provided that it gives prompt written notice and uses diligent efforts to resume performance.
8. DISPUTE RESOLUTION
8.1 Governing Law. This Agreement and any dispute arising under it are governed by, and construed in accordance with, the laws of the State of Washington, without regard to conflicts-of-law principles that would result in the application of any other laws.
8.2 Arbitration (Preferred). Except for actions (i) seeking injunctive relief under Section 6.3 or (ii) to compel or enforce arbitration, any dispute, controversy, or claim arising out of or relating to this Agreement shall be finally settled by confidential, binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules then in effect.
(a) The arbitral tribunal shall consist of a single arbitrator experienced in commercial-trade-secret matters.
(b) The seat of arbitration shall be Seattle, Washington, and judgment on the award may be entered in any court of competent jurisdiction.
8.3 Forum Selection. For any court proceeding permitted under Section 8.2, the Parties irrevocably submit to the exclusive jurisdiction of the state courts located in King County, Washington, and waive any objection based on inconvenient forum.
8.4 Jury-Trial Waiver. Each Party irrevocably waives its right to a jury trial in any legal proceeding arising out of this Agreement.
8.5 Injunctive Relief Preservation. Notwithstanding Section 8.2, either Party may seek interim equitable relief from any court of competent jurisdiction to protect Trade Secrets pending resolution of a dispute.
9. GENERAL PROVISIONS
9.1 Amendments & Waivers. No amendment or waiver of any provision is effective unless in a written instrument signed by both Parties. A waiver is effective only for the specific breach and instance given.
9.2 Assignment. Neither Party may assign or delegate this Agreement, in whole or in part, without the prior written consent of the other Party, except that either Party may assign to a successor-in-interest by merger, acquisition, or sale of substantially all assets relating to this Agreement, provided the assignee agrees in writing to be bound by its terms. Any purported assignment in violation of this Section is void.
9.3 Successors & Assigns. This Agreement binds and benefits the Parties and their permitted successors and assigns.
9.4 Severability. If any provision is held unenforceable, the remaining provisions will remain in full force, and the unenforceable provision will be reformed to the minimum extent necessary to reflect the Parties’ intent while remaining enforceable.
9.5 Integration. This Agreement constitutes the entire agreement between the Parties concerning its 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 any number of counterparts, each of which is deemed an original, and all of which together constitute one instrument. Execution and delivery by electronic signature or other electronic means (e.g., DocuSign, PDF) are valid and binding.
9.7 Notices. All notices must be in writing and delivered by (i) personal delivery, (ii) nationally recognized overnight courier (pre-paid), or (iii) certified mail, return receipt requested, to the addresses set forth above or such other address as either Party may designate by notice. Notices are deemed received on actual delivery or refusal thereof.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
| DISCLOSING PARTY | RECIPIENT |
|---|---|
| By: _______ | By: _______ |
| Name: [PRINTED NAME] | Name: [PRINTED NAME] |
| Title: [CORPORATE TITLE] | Title: [CORPORATE TITLE] |
| Date: __ | Date: __ |
[OPTIONAL NOTARY BLOCK – include if notarization is required under controlling corporate policy or for evidentiary purposes.]
[// GUIDANCE: Confirm that confidential-information management policies align with the obligations herein and that any separate master services, licensing, or joint-development agreements are consistent. Always perform a conflicts-of-law analysis when the transaction involves multi-state parties.]