WU Busniess Law Nondisclosure of Confidential Information Worksheet

INSTRUCTIONS
Please review the attached contract. There are highlighted sections throughout the contract. You will have
to make a decision whether the highlighted section needs to redrafted or left alone. If an amendment needs
to be made a strikethrough the deletion and underline the amendment. (DO NOT USE TRACK CHANGES)
In the event that a change needs to be made, the amendment is not anticipated to be extensive. Take into
account the potential ramifications of what a change or no change will have in the event of a breach.
For each highlighted section, please provide a brief discussion at the end of the document (at least 3
sentences) as to why an amendment was or was not made.
Each highlighted section is 10 points, for a Total of 100 points.
To help with your analysis, your company ACME and a second company BETA are
considering partnering together is a joint venture to create a new product line. You both
will be sharing information with the other that is important and proprietary to your own
businesses. In order to determine if a joint venture is going to work, both parties are first
seeking to enter into an NDA(nondisclosure agreement) where you can freely discuss your
respective proprietary information with the other. ACME is located in Georgia, BETA is
located in California.
MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
THIS MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (this “Agreement”),
entered into as of______________, 20__, (“Effective Date”)by and between ____________ (“PARTY 1”),
a company having a place of business at ____________________________, and
______________________ (“PARTY 2”), [an individual /a company] with a primary residence at
__________________________________________.
WHEREAS, PARTY 1 is in possession of certain information relating to its business, products and
technology;
WHEREAS, PARTY 2 is in possession of certain information relating to its business, products and
technology; and
WHEREAS, in furtherance of certain business discussions between the parties PARTY 1 and
PARTY 2 desire to exchange such information.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual covenants, terms and
conditions hereinafter expressed, PARTY 1 and PARTY 2 agree as follows:
1.
DEFINITION. “Confidential Information” shall mean all information, including, where
appropriate and without limitation, any financial information, business plans, clinical and product
development plans, strategies, business forecasts, sales and merchandising materials, videos, sound
recordings, audio/visual content and materials, PowerPoint presentations, lecture materials, patent
disclosures, patent applications, structures, models, techniques, know-how, trade secrets, processes,
compositions, formulations, compounds and apparatus relating to the same and other proprietary
information related to the current, future and proposed products and services of either of the parties,
disclosed by one party (the “Disclosing Party”) to the other party (the “Recipient”) or obtained by Recipient
through observation or examination of such information, but only to the extent that such information is
maintained as confidential by the Disclosing Party.
2.
NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Recipient agrees that the
Disclosing Party is the owner of the Confidential Information disclosed by the Disclosing Party and that
Recipient can disclose any of such Confidential Information to third parties. Recipient agrees to provide
any of the Confidential Information at any time except for the purposes of evaluation of a potential business
arrangement between Disclosing Party and Recipient;
However, Recipient shall have no liability to the Disclosing Party with respect to the use, or
disclosure to others not parties to this Agreement, of such information, as Recipient can establish
by written documentation, which:
(a)
is known or available to the public or otherwise is in the public domain at the time
of disclosure;
(b)
becomes part of the public domain after disclosure by any means except through
breach of this Agreement by the Recipient, or by a third party under an obligation
of confidentiality to the Disclosing Party;
(c)
have been otherwise known by Recipient prior to communication by the Disclosing
Party to Recipient of such information;
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(d)
(e)
have been received by Recipient at any time from a source other than the
Disclosing Party lawfully having possession of such information; or
is required by law to be disclosed; provided, however, Recipient must first give the
other party prompt notice of such requirement so that the Disclosing Party may
seek a protective order or other appropriate remedy, and Recipient will cooperate
with the Disclosing Party in any proceeding to obtain a protective order or other
remedy. If, in the absence of a protective order or other remedy, Recipient is
nonetheless, in the opinion of Recipient’s legal counsel, compelled to disclose
Confidential Information, Recipient may disclose only that portion of the
Confidential Information which such counsel advises Recipient is legally required
to be disclosed. In such an event, Recipient shall give to the Disclosing Party
written notice of the Confidential Information to be disclosed as far in advance of
its disclosure as is practicable and, upon Disclosing Party’s request, Recipient shall
use reasonable commercial efforts to obtain assurances that confidential treatment
will be accorded to such information.
In the case of paragraph 2(c) or 2(d) above, the exception must be proven by circumstantial evidence; that
evidence of prior knowledge must be in the form of a document dated prior to the disclosure by the
Disclosing Party.
3.
INTERNAL DISCLOSURE. Recipient agrees that any disclosure of the Confidential
Information within Recipient will only be such as is reasonably necessary to its evaluation and will only be
to employees, independent contractors, and/or legal counsel, of Recipient who are bound by written
agreements with Recipient to maintain the Confidential Information in confidence.
4.
RETURN OF CONFIDENTIAL INFORMATION. Within sixty (60) days following the
termination of any agreement between the parties hereto with respect to the subject matter hereof, or, if no
such agreement is entered into, after sixty (60) days from the Effective Date of this Agreement or the actual
disclosure of Confidential Information, whichever is later, Recipient agrees to promptly return all tangible
items relating to the Confidential Information, including all written material, photographs, audio/visual
content and materials, models, compounds, compositions and the like made available or supplied by the
Disclosing Party to Recipient, and all copies thereof, upon the request of the Disclosing Party. Recipient
further agrees to identify those persons to whom the Confidential Information that is the subject of this
Agreement was disclosed upon request of the Disclosing Party.
5.
NO LICENSE. This Agreement shall not be construed to grant any license or other rights
except as specified herein.
6.
NO PUBLIC ANNOUNCEMENT. Neither party will disclose the name of the other party, the
existence of this Agreement, or the subject matter hereof in any publicity, advertising or public
announcement without the prior written consent of the other party.
7.
TERM. The obligations of Recipient shall continue for a period of ten (10) years from the
date that the Disclosing Party first discloses such Confidential Information to Receiving Party.
Notwithstanding, the obligation to hold in confidence any and all Trade Secrets, as such term is defined
under Georgia law in O.C.G.A. § 10-1-761, shall remain in perpetuity or until the subject matter of the
Trade Secret has been intentionally disclosed to the public by the Disclosing Party or acknowledged by the
Disclosing Party that the subject matter of Trade Secret is no longer classified as a Trade secret.
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8.
LIMITED WARRANTIES. Disclosing Party warrants that it believes itself to be the owner
of its Confidential Information. Disclosing Party makes no other warranty relating to its Confidential
Information and the use to be made thereof by Recipient and disclaims all other warranties, express or
implied, including the warranties of merchantability or fitness for a particular purpose.
9.
EVALUATION. Recipient’s evaluation of the Confidential Information shall be at its own
risk and Recipient agrees to hold harmless and to indemnify the Disclosing Party against any and all claims,
demands, allegations, judgments, costs, awards, expenses (including reasonable attorneys’ fees) and
liabilities of every kind arising from any wrongful or unauthorized use in breach of this agreement made
by Recipient of the Confidential Information received from the Disclosing Party.
10.
ATTORNEYS’ FEES. If either party prevails in any legal action arising out of this
Agreement, the prevailing party shall be entitled to recover its court costs, expenses and reasonable
attorney’s fees.
11.
GOVERNING LAW. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Alaska, excluding those laws that direct the application of the laws of another
jurisdiction.
12.
INJUNCTIVE RELIEF. Each party hereto acknowledges and agrees that damages will not
be an adequate remedy in the event of a breach of any of its obligations under this Agreement. Each party
therefore agrees that the other party shall be entitled (without limitation of any other rights or remedies
otherwise available to that party ) to obtain, without posting bond, specific performance and preliminary
and permanent injunction from any court of competent jurisdiction prohibiting the continuance or
recurrence of any breach of this Agreement. If either party prevails in any legal action arising out of this
Agreement, the prevailing party shall pay its own court costs, expenses and reasonable attorney’s fees.
Each party hereby submits to the jurisdiction and venue of the courts located in Fort Bend County
of the State of Texas for purposes of any such action. Each party further agrees that service upon such
party in any such action or proceeding may be made by first class mail, certified or registered, to such
party’s address as set forth in this Agreement.
13.
BINDING EFFECT WAIVER. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the Parties. The waiver by either party of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any subsequent breach of the same or
any other provision hereof.
14.
ENFORCEMENT. If any of the provisions of this Agreement are found to be invalid under
an applicable statute or rule of law, they are to be enforced to the maximum extent permitted by law and
beyond such extent are to be deemed omitted from this Agreement, without affecting the validity of any
other provision of this Agreement.
15.
ENTIRE AGREEMENT; MODIFICATIONS. This Agreement contains the entire agreement
between PARTY 1 and PARTY 2 concerning the subject matter hereof and supersedes any and all prior
and contemporaneous negotiations, correspondence, understandings, and agreements, whether oral or
written, respecting that subject matter. All modifications to this Agreement must be in writing and signed
by the party against whom enforcement of such modification is sought.
16.
HEADINGS/COUNTERPARTS. The paragraph and section headings herein are intended for
reference and shall not by themselves determine the construction or interpretation of this Agreement. This
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Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original
document, but all of such counterparts shall constitute only one and the same document.
SIGNATURES ON THE FOLLOWING PAGE
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
PARTY 1
PARTY 2
By:
Name:
Title:
By:
Name:
Title:
Date:
Date:
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ANALYSIS
Please explain in 2-3 sentences why you amended the section or why you did not amend the section.
(Please do not forget to make the amendments in the contract if you decide the amendment needs to be
made).
1. SECTION 2: NONDISCLOSURE OF CONFIDENTIAL INFORMATION. (Part 1)
2. SECTION 2: NONDISCLOSURE OF CONFIDENTIAL INFORMATION. (Part 2)
3. SECTION 2: NONDISCLOSURE OF CONFIDENTIAL INFORMATION. (Part 3)
4. RETURN OF CONFIDENTIAL INFORMATION.
5. TERM.
6. ATTORNEYS’ FEES.
7. GOVERNING LAW
8. INJUNCTIVE RELIEF (PART 1)
9. INJUNCTIVE RELIEF (PART 2)
10. ENTIRE AGREEMENT; MODIFICATIONS.
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