MUTUAL CONFIDENTIALITY AGREEMENT
THIS MUTUAL CONFIDENTIALITY AGREEMENT (the “Agreement”), effective as of [____________, 202__] (the “Effective Date”) governs the disclosure of information by and between [COMPANY] (the “Company”) and the counterparty named on the signature page hereto in connection with a potential business relationship or transaction between the parties (the “Potential Relationship”).
In consideration of the parties’ discussions and any access to Confidential Information (as defined below), the parties hereby agree as follows:
1. Definition of Confidential Information. As used herein, “Confidential Information” means all information relating, directly or indirectly, to the disclosing party (the “Disclosing Party”) or any of its affiliates provided by the Disclosing Party to the other party (the “Recipient”) that is not generally known to the public, including, without limiting the generality of the foregoing, information concerning the business affairs, organizational structure and internal practices, services, products, customers, strategies, condition (financial or other), operations, or intellectual property of the Disclosing Party or any of its affiliates, including without limitation any data, reports, interpretations, forecasts, know-how, technology, plans, studies, employee information, financing transactions, partnerships, the existence of the discussions between the parties, customer lists, supplier lists, trade secrets, information related to current, future and proposed products and/or services, research, designs, inventions, ideas, concepts, plans and specifications, software programs, licenses and permits, formulas, methods or processes, financial information or records, results of operations, liabilities, cash flow projections, investor information, business and contractual relationships, public relations and marketing plans and arrangements, and such other information normally understood to be confidential or otherwise designated as such in writing by the Disclosing Party, whether disclosed on or before the Effective Date, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, as well as information discerned from, based on or relating to any of the foregoing which may be prepared by the Recipient, all of which the Recipient expressly acknowledges and agrees shall be confidential and proprietary information belonging to the Disclosing Party.
2. No Disclosure of Confidential Information. The Recipient agrees (i) to hold the Disclosing Party’s Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Recipient employs with respect to its confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person other than to those of its affiliates, officers, directors, employees, attorneys, accountants, and other professional advisors having a need to know such information and who are subject to confidentiality and nondisclosure obligations at least as restrictive as those contained herein (the “Representatives”), and (iii) not to make any use whatsoever at any time of such Confidential Information except for purposes of evaluating the Potential Relationship with the Disclosing Party and, to the extent an actual business relationship arises, solely to the extent agreed to in writing by the parties. [In addition, the Recipient will not modify, reverse engineer, decompile, create other works from, disassemble or copy any such Confidential Information, export or re-export (within the meaning of U.S. or other export control laws or regulations) any such Confidential Information or product thereof, and will not use any such Confidential Information to compete with the Disclosing Party.] Each party shall be responsible for any breach of confidentiality by its Representatives. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Recipient can document (a) is or becomes (through no improper action or inaction by the Recipient or any Representative of the Recipient) generally available to the public, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party without restriction, or (d) was independently developed without use of any Confidential Information of the Disclosing Party by employees of the Recipient who have had no access to such information.