Mutual Non-Disclosure Agreement
1. Definition of Confidential Information. "Confidential Information" as used in this Agreement shall mean any and all technical and non-technical information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") that is marked or otherwise identified orally or in writing by the Disclosing Party as confidential or proprietary or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary or cause detriment to the Disclosing Party if disclosed and shall include, without limitation, (a) concepts and ideas relating to the development and distribution of content in any medium or to the current, future or proposed products or services of the Disclosing Party; (b) trade secrets, drawings, works of authorship, inventions, know-how, software programs and software source documents; (c) information regarding research, development, new service offerings and products, marketing and selling, business plans, budgets and unpublished financial statements, licensing and distribution arrangements, prices and costs and suppliers and customers; (d) the existence of any business discussions, negotiations or agreements between the parties; and (e) any information regarding the skills and compensation of employees, contractors or other agents of the Disclosing Party.
2. Non Disclosure of Confidential Information.
(a) Each Receiving Party agrees that it will not make use of, reproduce, disseminate, or in any way disclose to any person, firm, or business any Confidential Information of the Disclosing Party, except to the extent necessary for negotiations, discussions, and consultations with personnel or authorized representatives of the Disclosing Party in connection with a potential business relationship.
(b) Each Receiving Party agrees that it shall disclose Confidential Information of the Disclosing Party only to those of its employees, contractors, or other agents who need to know such Confidential Information and who have agreed in writing to be bound by terms and conditions substantially similar to, and no less restrictive concerning limitations on use and disclosure than, those of this Agreement.
(c) Each Receiving Party agrees to treat all Confidential Information of the Disclosing Party with the same degree of care as it accords to its own Confidential Information and represents that it exercises at least reasonable care to protect its own Confidential Information.
(d) Neither party shall communicate any information to the other in violation of the proprietary rights of any third party.
(e) Confidential Information shall not include any information that either: (a) was in the public domain at the time it was communicated to the Receiving Party by the Disclosing Party; (b) entered the public domain after the time it was communicated to the Receiving Party by the Disclosing Party, through no fault of the Receiving Party; (c) was in the Receiving Party's possession, free of any obligation of confidence, at the time it was communicated to the Receiving Party by the Disclosing Party; (d) was rightfully communicated to the Receiving Party by a third party, free of any obligation of confidence, after the time it was communicated to the Receiving Party by the Disclosing Party; or (e) was developed by employees or agents of the Receiving Party independently of and without reference to any information communicated to the Receiving Party by the Disclosing Party. In addition, the Receiving Party may disclose the Disclosing Party’s Confidential Information in response to a valid order by a court or other governmental body, as required by law or as necessary to establish the rights of either party under this Agreement provided that the Disclosing Party is given prior notice of the intent to disclose to the extent reasonably practical and an opportunity to seek appropriate protection of the confidential nature of the information to the extent reasonably practical.
3. Return of Materials. All Confidential Information and materials furnished to the Receiving Party by the Disclosing Party shall remain the property of the Disclosing Party. The Receiving Party shall promptly return to the Disclosing Party all documents and any tangible material or medium containing or representing such Confidential Information upon the Disclosing Party's written request.
4. No Licenses. Neither party acquires any licenses under any intellectual property right of the other party under this Agreement, including, without limitation, patent, trademark, and copyrights.
5. Non-Assignment. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party.
6. Term and Termination. This Agreement shall govern all information exchanged between the parties during the period from the Effective Date of this Agreement to the earlier of the date (i) on which either party receives from the other written notice that subsequent information shall not be so governed or (ii) 6 months after the last discussion between the parties provided no business relationship or arrangement exists at that time (either a “Termination”). The parties' obligations under Section 2 for any previously disclosed Confidential Information shall continue for three (3) years after the Termination of this Agreement.
7. Remedy. Due to the unique nature of the Confidential Information, each party understands, acknowledges, and agrees that a Disclosing Party may suffer irreparable harm in the event that a Receiving Party fails to comply with the obligations hereunder and that, in the event of such breach, there would be no adequate remedy at law to fully compensate Disclosing Party for such breach. Accordingly, the Receiving Party hereby agrees that the Disclosing Party shall be entitled to seek injunctive relief to enforce the terms hereof upon breach by the Receiving Party or any of its representatives, such injunctive relief to be cumulative with all other legal and equitable remedies.
8. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION OR LOSS OF GOODWILL, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
9. General.
(a) Governing Law; Forum. This Agreement shall be governed in all respects by the laws of the United States of America and the State of California, as such laws are applied to agreements entered into and are to be performed entirely within California between California residents. The parties hereby submit to exclusive personal and subject matter jurisdiction of the state and federal courts located in the City and County of San Francisco concerning any claim or cause of action that may arise hereunder.
(b) Non-Solicitation. Each party agrees not to solicit for employment or assistance any employee or independent contractor of the other party without prior written consent until 6 months after the termination of the business relationship or arrangement between the parties contemplated herein. The provisions of this section shall not apply to general advertising for employment conducted by a party that is not directed at any such employee or independent contractor.
(c) Integration. This Agreement represents the parties' entire understanding concerning the subject matter hereof and supersedes any other prior or contemporaneous agreements or understandings, whether written or oral. This Agreement may only be changed by written mutual agreement of authorized representatives of the parties. If any provision of the Agreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such unenforceable or invalid provision had never been contained herein.
(d) Notices. All notices or reports permitted or required under this Agreement shall be in writing and shall be by personal delivery, nationally recognized overnight courier service, facsimile transmission, or by certified or registered mail, return receipt requested, and shall be deemed given upon the earlier of actual receipt or one (1) day after deposit with the courier service, five (5) days after deposit in the mail, or receipt by the sender of confirmation of electronic transmission. Notices shall be sent to the addresses set forth at the end of this Agreement or such other address as either party may specify in writing.
(e) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and constitute one instrument.