California Nondisclosure Agreement Template

THIS NONDISCLOSURE AGREEMENT AND CONFIDENTIALITY AGREEMENT (“Agreement”) is made as of this [Document.CreatedDate], by and between [Disclosing Party.Company],and [Receiving Party.Company](collectively, the “Parties”), for the purpose of preventing an unauthorized disclosure of certain Confidential Information, as defined below. 

WHEREAS, Disclosing Party utilizes certain Confidential Information including personal and proprietary data, lists and other protected information in the course of carrying out its business; and 

WHEREAS, Disclosing Party and Receiving Party intend to enter into a business work relationship; and

WHEREAS, in order for Receiving Party to effectively evaluate the business relationship, Disclosing Party will need to share Confidential Information with Receiving Party;

NOW, THEREFORE, the undersigned hereby agree as follows:

1. “Confidential Information.”

As used in this Agreement, “Confidential Information” includes all information, whether transmitted orally or in writing, disclosed by the Disclosing Party to Receiving Party and relating to the Disclosing Party’s business plans, strategies, financial information, research and development and marketing; including, without limitation, trade secrets, software, product design information, client, customer, and vendor lists, prices and pricing policies not otherwise published by third parties; research and development materials, prototypes, business plans, new products and services under development; and marketing, business and digital strategies.

Confidential Information does not include information which is (a) known by Receiving Party at the time of receipt from the Disclosing Party, (b) approved in writing for release from this provision by the Disclosing Party, (c) now or which hereafter becomes part of the public domain through no action or omission of Receiving Party, (d) independently developed by Receiving Party without the use of Confidential Information, and/or (e) acquired by Receiving Party from a third party without restriction on use or disclosure and without breach by such third party of an obligation of confidentiality.

2. Receiving Party’s Obligations.

Receiving Party agrees to (i) to hold all of the Confidential Information in strict confidence, (ii) not to make use of any Confidential Information except for Disclosing Party’s purposes; including, but not limited to, not using any Confidential Information to design, develop or produce products or services without Disclosing Party’s authorization, and (iii) not to copy the Confidential Information without Disclosing Party’s authorization. Should a dispute arise between the Parties as to Receiving Party’s breach of this Section, Receiving Party shall bear the burden of proof to prove one of the foregoing exceptions exists.

3. Property Rights.

The Disclosing Party retains all of its intellectual property rights in and to its Confidential Information. Immediately upon a written request by Disclosing Party at any time, the Receiving Party will return or destroy all Confidential Information and all documents or media containing any Confidential Information, and any and all copies or extracts thereof.

4. No License Granted.

Neither the execution and delivery of this Agreement nor the furnishing of any Confidential Information by Disclosing Party shall be construed as granting to Receiving Party either expressly, by implication, estoppel or otherwise, any license under any invention, patent, trademark, or copyright now or hereafter owned or controlled by Disclosing Party.

5. Remedies.

Receiving Party acknowledges and agrees that due to the unique nature of the Confidential Information of Disclosing Party, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Receiving Party or third parties to unfairly compete with Disclosing Party resulting in irreparable harm to Disclosing Party, and, therefore, that upon any such breach or any threat thereof, Disclosing Party shall be entitled to (a) specific performance and other injunctive relief without the necessity of posting a bond, in addition to whatever remedies it might have at law, and (b) be indemnified by Receiving Party from any loss or harm, including, without limitation, attorney's fees, in connection with any breach or enforcement of Receiving Party’s obligations hereunder, or the unauthorized use or release of any such Confidential Information.

Disclosure Restrictions and Exceptions.

The Receiving Party will disclose Confidential Information only to its employees and to its representative whose participation is necessary or helpful to evaluate and advance to the Business Transaction and who have agreed to be bound by the terms of this Agreement. The Receiving Party will limit the unauthorized disclosure of Confidential Information by using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own confidential information. Notwithstanding anything to the contrary in this Agreement, the Receiving Party is not prohibited from disclosing Confidential Information it is legally compelled to disclose (by deposition, subpoena, civil investigative demand, court order or otherwise), provided that the Receiving Party gives the Disclosing Party prompt written notice of any such required disclosure so that the Disclosing Party may seek a protective order or other appropriate remedy.

If such protective order or other remedy is not obtained and the Disclosing Party has not waived compliance with the provisions of this Agreement, the Receiving Party will furnish only that portion of the Confidential Information which the Receiving Party is advised by opinion of counsel it is legally required to furnish and will exercise reasonable efforts to limit the scope and content of such disclosure and obtain confidential treatment of such Confidential Information, Furthermore, the Receiving Party’s obligations under this Agreement do not apply with respect to any Confidential Information that (a) is or becomes generally available to the public other than from the improper action of the Receiving Party, (b) is developed by the Receiving Party without reference to the Confidential Information, (c) was in the Receiving Party’s possession before receipt from the Disclosing Party, or (d) is received by the Receiving Party from a third party who is not subject to an obligation of confidentiality owed to the Disclosing Party.

Receiving Party shall notify Disclosing Party in writing immediately upon the occurrence of any such unauthorized release access to Confidential Information. Violation of this agreement by the Receiving Party will entitle the Disclosing Party to an injunction to prevent such competition or further disclosure, and will entitle the Disclosing Party  to other legal remedies, including attorney's fees and costs.

6. Governing Law.

This Agreement shall be governed in all respects by the laws of the State of California, without regard to its choice of law provisions. This Agreement shall be binding upon the successors and assigns of the respective parties.

7. Disclosure under Court Order.

Receiving Party may make disclosures required by applicable, (deposition, subpoena, civil investigative demand, court order or otherwise) if Receiving Party (a) uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order, (b) promptly provide notice to Disclosing Party of and allows Disclosing Party to participate in the proceeding, and only provides the minimal amount of Confidential Information it is required to under applicable law.

Remedies.

Because of the unique and proprietary nature of Confidential Information, it is understood and agreed that remedies at law for a breach by the Receiving Party of its obligations under this Agreement may be inadequate and that in the event of such breach or threatened breach the

Disclosing Party will be entitled to seek equitable relief, including without limitation injunctive relief and specific performance. The remedies set forth in this Section are in addition to any other remedies available for any such breach or threatened breach, including the recovery of damages from the breaching party.

Term.

The Receiving Party’s obligations imposed pursuant to this Agreement will continue:

indefinitely; 

for X years from the date hereof.

8. Return or Destruction of Confidential Information.

At any time during or after the term of this Agreement, at the Disclosing Party’s written request, the Receiving Party and/or its representatives shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. The Receiving Party shall also destroy all copies of any notes related to the Confidential Information created by the Receiving Party or its Representatives, and certify in writing to the Disclosing Party that such copies have been destroyed.

9. Notice.

All notices or requests required or contemplated by this Agreement shall be in writing and shall be transmitted by email or a letter sent via certified, return-receitp mail.

10. General Provisions.

In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. No waiver of this Agreement will be binding upon either party unless made in writing and signed by a duly authorized representative of each party and no failure or delay in enforcing any right will be deemed a waiver. All waivers shall be strictly construed.

11. No Warranty.

DISCLOSING PARTY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES RELATING TO THE CONFIDENTIAL INFORMATION INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, OR THAT ANY PARTICULAR INFORMATION IS IN FACT CONFIDENTIAL.

12. Entire Agreement.

This Agreement constitutes the sole and entire agreement of the Parties regarding the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party hereto.

13. Severability.

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

14. Counterparts acceptable.

Each party may sign and scan/email a separate copy of the signature page to the other party.  The acceptance of any party to the terms hereof may be evidenced by the electronic transmission of the party’s signature. 

15. Electronic Signatures.

This Agreement and related documents entered into in connection with this Agreement are signed when a party’s signature is delivered electronically, and these signatures must be treated in all respects as having the same force and effect as original signatures.

16. Assignment.

Receiving Party may not assign any of its rights or obligations hereunder without the prior written consent of the Disclosing other Party. Disclosing Party may assign this Agreement to an affiliate or to a successor in interest to which the business relates.

Any purported assignment in violation of this Section shall be null and void. No assignment shall relieve the assigning Party of any of its obligations hereunder. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

17. Waivers.

No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, privilege, or power.

IN WITNESS WHEREOF, the parties hereto have duly executed and have caused this Agreement duly to be executed and delivered as of the [Document.CreatedDate].