Orrick-Mutual-NDA.commonform

    \ Preamble \ This Mutual Nondisclosure Agreement (the ""Agreement"") is made as of [Effective Date], by and between [Company's Name], a [Company's Legal Form] (the ""Company""), and [Counterparty's Name] (""Counterparty""). Each party has disclosed and/or may further disclose its <Confidential Information> to the other in connection with the <Relationship> pursuant to the terms and conditions of this <Agreement>. As used herein, the term ""Discloser"" shall refer to the <Company> whenever the context refers to the <Company>'s <Confidential Information> being disclosed to <Counterparty>, which is referred to as ""Recipient"" in that context. Conversely, the term <Discloser> shall refer to <Counterparty> whenever the context refers to <Counterparty>'s <Confidential Information> being disclosed to the <Company>, which is referred to as <Recipient> in that context. 

    \ Purpose \ The parties wish to explore a possible business opportunity of mutual interest [Description of Business Opportunity] (the ""Relationship"") in connection with which <Discloser> has disclosed and/or may further disclose its <Confidential Information> (as defined below) to <Recipient>. This <Agreement> is intended to allow the parties to continue to discuss and evaluate the <Relationship> while protecting <Discloser>'s <Confidential Information> (including <Confidential Information> previously disclosed to <Recipient>) against unauthorized use or disclosure.

    \ Definition of Confidential Information \ ""Confidential Information"" means any oral, written, graphic or machine-readable information, technical data or know-how, including, but not limited to, that which relates to patents, patent applications, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, algorithms, regulatory information, medical reports, clinical data and analysis, reagents, cell lines, biological materials, chemical formulas, business plans, agreements with third parties, services, customers, marketing or finances of <Discloser>, which <Confidential Information> is designated in writing to be confidential or proprietary, or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed [Period for Designating Material Confidential after Disclosure]) after the oral disclosure, or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary.

    \ Regulation FD \ <Recipient> understands that <Discloser>'s <Confidential Information> as well as the existence of the discussions concerning the <Relationship> and the terms of the <Relationship> being contemplated by the parties may be deemed material non-public information and that it is unlawful for <Recipient> to, and <Recipient> has no intention to, trade in the stock of <Discloser> while <Recipient> is in possession of such material non-public information.

    \ Non-Acceptance of Confidential Information; No Compensation \ Recipient shall have the right to refuse to accept any <Confidential Information> tendered by <Discloser>, and nothing in this <Agreement> shall obligate <Recipient> to accept any such <Confidential Information>. <Recipient> shall not compensate <Discloser> for receiving any <Confidential Information> under this <Agreement>.

    \ Nondisclosure of Confidential Information \

        \\ <Recipient> agrees not to use any <Confidential Information> disclosed to it by <Discloser> for its own use or for any purpose other than to carry out discussions concerning, and the undertaking of, the <Relationship>. <Recipient> shall not disclose or permit disclosure of any <Confidential Information> of <Discloser> to third parties or to employees of <Recipient>, other than directors, officers, employees, consultants and agents of <Recipient> who are required to have the information in order to carry out the discussions regarding the <Relationship>. <Recipient> agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure or use of <Confidential Information> of <Discloser> in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this <Agreement> to have any such information. Such measures shall include the degree of care that <Recipient> utilizes to protect its own <Confidential Information> of a similar nature. <Recipient> agrees to notify <Discloser> of any misuse, misappropriation or unauthorized disclosure of <Confidential Information> of <Discloser> which may come to <Recipient>'s attention.

        \ Exceptions \ Notwithstanding the above, <Recipient> shall not have liability to <Discloser> with regard to any <Confidential Information> that the <Recipient> can prove:

            \\ was in the public domain at the time it was disclosed or has entered the public domain through no fault of <Recipient>;

            \\ was known to <Recipient>, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure;

            \\ was independently developed by <Recipient> without any use of the <Confidential Information>, as demonstrated by files created at the time of such independent development;

            \\ is disclosed generally to third parties by <Discloser> without restrictions similar to those contained in this <Agreement>;

            \\ becomes known to <Recipient>, without restriction, from a source other than <Discloser> without breach of this <Agreement> by <Recipient> and otherwise not in violation of <Discloser>'s rights;

            \\ is disclosed with the prior written approval of <Discloser>; or

            \\ is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that <Recipient> shall provide prompt notice of such court order or requirement to <Discloser> to enable <Discloser> to seek a protective order or otherwise prevent or restrict such disclosure.

    \ Return of Materials \ <Recipient> agrees, except as otherwise expressly authorized by <Discloser>, not to make any copies or duplicates of any <Confidential Information>. Any materials or documents that have been furnished by <Discloser> to <Recipient> in connection with the <Relationship> shall be promptly returned by <Recipient>, accompanied by all copies of such documentation, within ten (10) days after
        \\ the <Relationship> has been rejected or concluded or

        \\ the written request of <Discloser>; provided, however, that <Recipient> may at its option retain [Number of Copies of Materials Recipient May Archive] copy of such materials or documents for archival purposes only.

    \ No Rights Granted \ Nothing in this <Agreement> shall be construed as granting any rights under any patent, copyright or other intellectual property right of <Discloser>, nor shall this <Agreement> grant <Recipient> any rights in or to <Discloser>'s <Confidential Information> other than the limited right to review such <Confidential Information> solely for the purpose of determining whether to enter into the <Relationship>. Nothing in this <Agreement> requires the disclosure of any <Confidential Information>, which shall be disclosed, if at all, solely at <Discloser>'s option. Nothing in this <Agreement> requires the <Discloser> or <Recipient> to proceed with the <Relationship> or any transaction in connection with which the <Confidential Information> may be disclosed.

    \ Independent Development and Residuals \

        \\ <Recipient>'s confidentiality obligations under this <Agreement> shall not be construed to limit <Recipient>'s right to develop independently or acquire products without use of <Discloser>'s <Confidential Information>. <Discloser> acknowledges that <Recipient> may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the <Confidential Information>. Accordingly, nothing in this <Agreement> will prohibit the receiving party from developing or having developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the <Confidential Information> provided that <Recipient> does not violate any of its obligations under this <Agreement> in connection with such development.

        \\ In addition, notwithstanding any other provision of this <Agreement>, <Recipient>'s confidentiality obligations under this <Agreement> shall not apply to, and <Recipient> shall be free to use, the <Residuals> resulting from access to or work with the <Confidential Information> of <Discloser>. As used in this <Agreement>, the term ""Residuals"" means information in non tangible form, which may be retained by persons who have had access to the <Confidential Information>, including ideas, concepts, know how or techniques contained therein. <Recipient> shall have no obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of <Residuals>.

    \ Term \ The foregoing commitments of each party shall survive any termination of the <Relationship> between the parties, and shall continue for a period terminating on the later to occur of the date

        \\ [Period from the Date of the Agreement During which Confidentiality Obligations Survive] following the date of this <Agreement> or

        \\ [Period from the Date of Disclosure During which Confidentiality Obligations Survive] from the date on which <Confidential Information> is last disclosed under this <Agreement>.

    \ Successors and Assigns \ The terms and conditions of this <Agreement> shall inure to the benefit of and be binding upon the respective successors and assigns of the parties, provided that <Confidential Information> of <Discloser> may not be assigned without the prior written consent of <Discloser>, unless the assignee shall be the successor entity to the assignor upon the dissolution of the assignor in its present form. Nothing in this <Agreement>, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this <Agreement>, except as expressly provided in this <Agreement>.

    \ Severability \ If one or more provisions of this <Agreement> are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then

        \\ such provision shall be excluded from this <Agreement>,

        \\ the balance of the <Agreement> shall be interpreted as if such provision were so excluded and

        \\ the balance of the <Agreement> shall be enforceable in accordance with its terms.

    \ Independent Contractors \ The parties are independent contractors, and nothing contained in this <Agreement> shall be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.

    \ Governing Law \ This <Agreement> and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the [Governing Law Jurisdiction], without giving effect to principles of conflicts of law.

    \ Jurisdiction \ Each of the parties hereto consents to the exclusive jurisdiction and venue of the courts of [Jurisdiction to which the Parties Consent].

    \ Remedies \ Each party's obligations set forth in this <Agreement> are necessary and reasonable in order to protect <Discloser> and its business. Due to the unique nature of <Discloser>'s <Confidential Information>, monetary damages would be inadequate to compensate <Discloser> for any breach by <Recipient> of its covenants and <Agreement>s set forth in this <Agreement>. Accordingly, the parties each agree and acknowledge that any such violation or threatened violation may cause irreparable injury to <Discloser> and, in addition to any other remedies that may be available, in law, in equity or otherwise, <Discloser> shall be entitled to obtain injunctive relief against the threatened breach of this <Agreement> or the continuation of any such breach by <Recipient>.

    \ Amendment and Waiver \ Any term of this <Agreement> may be amended with the written consent of both parties. Any amendment or waiver effected in accordance with this provision shall be binding upon the parties and their respective successors and assigns. Failure to enforce any provision of this <Agreement> by a party shall not constitute a waiver of any term hereof by such party.

    \ Counterparts \ This <Agreement> may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

    \ Entire Agreement \ This <Agreement> is the product of both of the parties hereto, and constitutes the entire <Agreement> between such parties pertaining to the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. Any and all other written or oral <Agreement>s existing between the parties hereto regarding such transactions are expressly canceled.

    \ No Publicity \ Neither party shall, without the prior consent of the other party, disclose to any other person the fact that <Confidential Information> of <Discloser> has been and/or may be disclosed under this <Agreement>, that discussions or negotiations are taking place between the parties, or any of the terms, conditions, status or other facts with respect thereto, except as required by law and then only with prior notice as soon as possible to the other party.

    \ No Modification \ <Recipient> agrees that it shall not modify, reverse engineer, decompile, create other works from or disassemble any software programs contained in the <Confidential Information> of <Discloser> unless permitted in writing by <Discloser>.

    \ Restrictions on Export \ <Recipient> shall not export, directly or indirectly, any technical data acquired from <Discloser> pursuant to this <Agreement> or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.