New York Non-Disclosure Agreement Template
[Disclosing Party.FirstName][Disclosing Party.LastName][Disclosing Party.Company]
THIS Non-Disclosure Agreement (the “Agreement”), is made and entered into this [Document.CreatedDate] by and between: [Disclosing Party.Company] and [Recipient.Company] (at times Disclosing Party and Recipient shall be individually referred to as a “Party” and collectively as the “Parties”).
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Recipient and the Disclosing Party hereby agree as follows:
The Recipient recognizes that the Disclosing Party has certain proprietary, confidential, and trade secret information (the “Confidential Materials”) as defined below relating to the business of the Disclosing Party and wishes to receive certain proprietary, confidential and trade secret information in connection with ____________________________________________________________________ ____________________________________________________________________
(the “Business Purpose”), and the Disclosing Party desires that all such information shall be kept confidential by Recipient. In consideration of the disclosure by the Disclosing Party the Confidential Materials the Recipient agrees to keep such information confidential in accordance with the terms and conditions set forth in this Agreement.
2. Confidential Materials.
As used herein, the term “Confidential Materials” means and includes any and all information or materials whether oral, written or in any other form relating to the Disclosing Party or the Business Purposes furnished to Recipient, or discovered by Recipient through provided access, including any and all information provided to Recipient or to any of Recipient’s directors, officers, employees, agents, or representatives (including financial advisors, consultants, and legal counsel), and all analysis, compilations, studies, or other documents or records prepared by or on behalf of Recipient which contain or otherwise reflect or are generated from such materials in connection with the Disclosing Party or the Business Purpose. Confidential Materials may include “Trade Secrets” as well as other confidential and proprietary information that is of value to the Disclosing party, including but not limited to: customer lists, vendors/suppliers lists, business or strategic plans, know hows, financial projections, future marketing campaigns, training guides, existing or proposed bids, costs etc.
3. Exceptions to confidentiality.
The term “Confidential Materials” shall not include information which is (a) already known by the Recipient without an obligation of confidentiality other than this Agreement, (b) publicly known or which becomes publicly known through no unauthorized act of the Recipient,
(c) rightfully received by Recipient from a third party who is not subject to any confidentiality or fiduciary obligations with respect to such information, or (d) was requested by and is required to be disclosed pursuant to a court order, a rule or a regulation of a governmental agency or a law of the United States of America or another country, or any governmental or political subdivision thereof, so long as Recipient provides the Disclosing Party with sufficient prior notice of such requirement so as to allow the Disclosing Party an opportunity to oppose such disclosure.
5. Return of Confidential Materials.
(a) Except as Provided in Section 5(b), upon the earlier of (i) the completion of the Business Purpose, (ii) written request of the Disclosing Party or (iii) the expiration of the term of this Agreement, Recipient shall return all copies of such Confidential Materials and all derivatives thereof to the Disclosing Party or shall cause to be destroyed all copies of such Confidential Materials and all derivatives, and certify in writing to the Disclosing Party that such Confidential Materials and derivatives have been destroyed. Recipient may return Confidential Materials, or any part thereof, to the Disclosing Party at any time. (b) Recipient shall be permitted to keep copies of Confidential Materials to the extent that (i) recipient document retention procedures, applicable accounting or tax professional standards or applicable law require retention thereof or (ii) such copies are electronic archival copies made as part of an automatic backup or disaster recovery process.
6. No Further Rights; No Warranties; No Third Party Beneficiary.
Nothing contained in this Agreement shall (i) be construed as granting or conferring any rights by license or otherwise in or to the Confidential Materials except for the use of such Confidential Materials as expressly provided herein, or (ii) grant to Recipient or any other person any right, or be construed as offering to Recipient or any other person any right, in or to the Business Purpose or any investment therein.
The Disclosing Party, or their respective directors, officers, employees, agents, or representatives make no representation or warranty as to the accuracy of completeness of any Confidential Materials, except as may be set forth in the future in any definitive written acquisition, investment or other agreement relating to the Business Purpose. This Agreement is not intended, nor shall it be construed, to create any right in or upon any person or entity not a party to this Agreement.
7. No Exclusive Discussions; Non-Circumvention.
The Parties acknowledge and agree that the provision by the Disclosing Party of Confidential Materials and/or any discussions held in connection with the Business Purpose shall not prevent the Disclosing Party from providing Confidential Materials to, and exploring Business Purpose opportunities with, third parties.
Further, Recipient acknowledges that the Disclosing Party has a unique and valuable asset in its relationships with its customers and vendors, and that the Disclosing Party would be damaged if Recipient attempted to usurp or circumvent the Business Purpose by any means or with any information whatsoever, whether gained through meetings, discussions or correspondence with representatives of the Disclosing Party, its customers and vendors, or otherwise; and agrees (i) not to have discussions regarding, or to take any action in respect of, the Business Purpose with any third party which would circumvent or impair the Disclosing Party’s ability to pursue the Business Purpose, and (ii) not to use, resource or leverage for Recipient’s benefit or for the benefit of others in connection with the Business Purpose, either directly or indirectly.
Each Party is responsible for its own costs and expenses concerning or arising from this Agreement, including expenses or losses by the Parties stemming from preparation, or as a result of this Agreement, whether incurred or future one.
Recipient acknowledges that the Disclosing Party would suffer irreparable damage in the event of any material breach of the provisions of this Agreement. Accordingly, in such an event, the Disclosing Party will be entitled to seek preliminary and final injunctive relief, as well as any other applicable remedies at law, including reimbursement of any and all legal costs that it may have expended in connection with such breaches, against Recipient if it breaches this Agreement.
Recipient shall indemnify and hold the Disclosing Party, and their respective shareholders, directors, officers, employees, agents, and representatives ( the “Indemnified Parties”), harmless from and against any and all losses, claims, obligations, demands, assessments, penalties, liabilities, costs, damages, attorneys’ fees and expenses, asserted against or incurred by any of the Indemnified Parties arising or resulting from any breach of the provisions of this Agreement by Recipient or the unauthorized disclosure or use by Recipient’s directors, officers, employees, agents, or representatives of any of the Confidential Materials.