Legal NCD Template

LEGAL NON-CIRCUMVENTION AND NON-DISCLOSURE AGREEMENT

This Non-Circumvention and Non-Disclosure Agreement (the "Agreement") is made and entered into as of Effective Date: by and between Party A: , whose principal place of business is , and Party B: , whose principal place of business is .

RECITALS

WHEREAS, the parties desire to engage in discussions and potential transactions relating to certain business opportunities, introductions, investments, projects, products, services or other commercial arrangements described as the Purpose: ; and

WHEREAS, in connection with the Purpose each party may disclose or make available Confidential Information (as defined below) and proprietary contacts and relationships; and

WHEREAS, the parties wish to protect the Confidential Information and to prevent circumvention of introductions, transactions and relationships among the parties and any third parties introduced by them.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:

1. DEFINITIONS

1.1 "Confidential Information" means any non-public, proprietary or business information disclosed by a Disclosing Party to the Receiving Party, whether disclosed orally, visually, in writing or electronically, including, without limitation, financial information, business plans, customer lists, supplier lists, pricing, proposals, technical data, trade secrets, software, designs, drawings, specifications, marketing plans, and the identity of prospective customers and contacts.

1.2 "Circumvent" or "Circumvention" means directly or indirectly engaging, soliciting, negotiating with, contracting with, or accepting any engagement from any person, firm, corporation, partnership or other entity introduced by the Disclosing Party for the Purpose, without the prior written consent of the Disclosing Party, for a period defined in Section 4.

2. NON-DISCLOSURE OBLIGATIONS

2.1 The Receiving Party shall not disclose, publish, or disseminate any Confidential Information to any third party except to those employees, agents, advisors or representatives who have a strict need to know for the Purpose and who are bound by confidentiality obligations at least as protective as those contained in this Agreement.

2.2 The Receiving Party shall use the Confidential Information solely for the Purpose and shall exercise at least the same degree of care to protect the Confidential Information as it uses to protect its own confidential information, but in no event less than a reasonable standard of care.

3. NON-CIRCUMVENTION

3.1 During the Term and for the Restriction Period, neither party shall directly or indirectly Circumvent the other with respect to any business opportunity, introduction, contract, transaction, or relationship introduced by the other party, whether present or future, and shall not interfere with or attempt to interfere with any such introduced relationship.

3.2 Each party agrees to notify the other in writing of any inquiry, offer or approach received from an introduced third party and to provide reasonable cooperation in documenting any resulting transactions and payments due under any separate agreement between the parties.

4. TERM AND RESTRICTION PERIOD

4.1 This Agreement shall commence on the Effective Date and shall continue in effect for a period of years (the "Term"), unless earlier terminated in writing by the parties.

4.2 Notwithstanding termination of this Agreement, the obligations of confidentiality and non-circumvention shall continue for a period of years from the date of disclosure of the Confidential Information or introduction, whichever is later.

5. EXCLUSIONS FROM CONFIDENTIAL INFORMATION

5.1 Confidential Information shall not include information that: (a) is or becomes publicly available through no breach of this Agreement by the Receiving Party; (b) is rightfully received from a third party without restriction and without breach of an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information; or (d) is required to be disclosed by law or regulation, provided the Receiving Party gives prompt written notice to the Disclosing Party and cooperates in any lawful effort to limit the disclosure.

6. USE AND RETURN OF MATERIALS

6.1 All Confidential Information and any copies, summaries or extracts thereof shall remain the property of the Disclosing Party. Upon written request of the Disclosing Party, the Receiving Party shall promptly return or, at the Disclosing Party's option, destroy all Confidential Information and certify in writing that such materials have been returned or destroyed.

7. REMEDIES

7.1 The parties acknowledge that monetary damages may be an inadequate remedy for breach of this Agreement and that the non-breaching party shall be entitled to seek injunctive relief and other equitable remedies without the requirement of posting a bond, in addition to any other remedies available at law or in equity.

7.2 The prevailing party in any action to enforce this Agreement shall be entitled to recover its reasonable attorneys' fees and costs.

8. INDEMNIFICATION

8.1 Each party shall indemnify, defend and hold harmless the other party from and against any losses, liabilities, damages, costs and expenses (including reasonable attorneys' fees) arising out of any breach of this Agreement by the indemnifying party.

9. NOTICES

Party A - Notice Address

Party B - Notice Address

Notices shall be in writing and shall be deemed given when delivered personally, sent by certified mail, return receipt requested, or sent by nationally recognized overnight courier to the addresses specified above or such other address as either party may designate in writing.

10. AMENDMENT, WAIVER AND COUNTERPARTS

10.1 This Agreement may be amended or modified only by a written instrument signed by both parties. No failure or delay in exercising any right shall constitute a waiver of that right.

10.2 This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.

11. GOVERNING LAW; SEVERABILITY; ENTIRE AGREEMENT

11.1 This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to conflicts of law principles.

11.2 If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be modified to the minimum extent necessary to make it enforceable, and the remaining provisions shall remain in full force and effect.

11.3 This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, understandings and agreements, whether written or oral, relating to such subject matter.

12. MISCELLANEOUS

12.1 Each party represents and warrants that it has full power and authority to enter into this Agreement and to perform its obligations hereunder.

12.2 The parties agree that any breach of the non-circumvention or non-disclosure provisions will cause irreparable harm to the Disclosing Party and that the Disclosing Party shall be entitled to seek injunctive relief plus damages and reasonable attorneys' fees.

Additional Provisions, Clarifications or Exceptions

ACKNOWLEDGMENTS

The parties acknowledge that they have read and understand this Agreement and that they are authorized to execute this Agreement on behalf of the respective parties named herein.

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