Suppose, you are looking to hire an Indian (or Russian or US, it doesn't matter) development company to develop an app for you. Before sharing your unique app idea, specifications, business practices and other confidential information, it's a good idea to have them sign an NDA that ensures:
- Confidential Information can only be used as required to accomplish the purpose of the agreement;
- Developer is liable for its employees, consultants and associates if they breach the NDA;
- In case there are any leaks, Developer has to prove by written evidence if that the use of your information was lawful;
- Developer cannot attempt to "steal" your employees, customers or consultants;
- All disputes must be resolved in your state, so you don't have to try to sue in a foreign jurisdiction;
- English language prevails in case there are any discrepancies between any foreign language translation of the NDA.
The template below is drafted to accomplish the aforementioned purposes.
CONFIDENTIALITY
and NON- SOLICITATION
AGREEMENT
This Agreement is made as of the _____
day of ________________, 2018 (the “Effective Date”), by and between the
undersigned Parties who hereby agree as follows:
1.
DEFINITIONS.
a)
Disclosing Party: ________[Company
name]_____, having its principal place of
business at _______________[address]____________.
b)
Receiving Party: ______[insert
Developer’s company name]_________________,
having its principal place of business
at _______________[address]____________.
c)
Purpose. The Disclosing Party will share its Confidential
Information with the Receiving Party for the Purpose of allowing the Receiving
Party to furnish a quote for the development of an app for the Disclosing Party.
d)
“Confidential Information”
shall mean all information furnished by the Disclosing Party or its
Representatives (defined below) to the Receiving Party or its Representatives,
whether orally, in writing, electronically or in other form, and identified as
confidential or proprietary at the time of disclosure by the Disclosing Party
or otherwise disclosed in a manner such that a reasonable person would
understand its confidential nature, including but not limited to, information
that is related to: (a) app specifications, functionality, inventions (whether
patented or not); (b) the research, development and processes of the Disclosing
Party; (c) the business plans or operations of the Disclosing Party; (d) the business of any customer or partner
of the Disclosing Party; (e) Disclosing Party’s properties, employees,
finances, operations; (f) product offerings, content partners, product pricing,
product availability, technical drawings, algorithms, processes, ideas,
techniques, formulas, data, trade secrets, know-how, improvements, marketing
plans, forecasts and strategies.
“Confidential Information” shall be deemed to include all notes,
analyses, compilations, studies, interpretations or other documents prepared by
the Receiving Party or its Representatives which contain or are based upon, in
whole or in part, the information furnished to the Receiving Party or its
Representatives by the Disclosing Party.
2.
PERMITTED USE. Confidential
Information can only be used as required to accomplish the Purpose of this
Agreement. Any reproduction of any Confidential Information of the Disclosing
Party shall remain the property of the Disclosing Party. The Receiving Party:
(a) shall take all reasonable steps (defined below) to keep all Confidential
Information strictly confidential; (b) shall not disclose or reveal any
Confidential Information to any person other than its Representatives who are
actively and directly participating in the Purpose or who otherwise need to
know the Confidential Information for the Purpose; (c) shall not use
Confidential Information for any purpose other than in connection with the
Purpose. and (d) shall not disclose to any person (other than those of its
Representatives who are actively and directly participating in the Purpose or
who otherwise need to know for the Purpose) any information about the Purpose,
or the terms or conditions or any other facts relating thereto, including,
without limitation, the fact that discussions are taking place with respect
thereto or the status thereof, or the fact that Confidential Information has
been made available to the Receiving Party or its Representatives. As used
herein “reasonable steps” means those steps the Receiving Party takes to
protect its own similar proprietary and confidential information, which shall
not be less than a reasonable standard of care. As used herein.
“Representatives” shall mean (i) employees, consultants, partners and
associates of the Receiving Party; (ii) attorneys, accountants, or other
professional business advisors and, additionally, (iii) employees of the
Receiving Party and those entities directly or indirectly owned by the
Receiving Party, in each case, who shall be informed of the confidential nature
of the Confidential Information and shall agree to act in accordance with the
terms of this Agreement. The Receiving Party shall be responsible for any
breach of the terms of this Agreement by it or its Representatives.
3.
EXCEPTIONS. The
above restrictions on the use or disclosure of the Confidential Information shall
not apply to any Confidential Information that: (a) is independently developed
by the Receiving Party without reference to the Confidential Information, or is
lawfully received free of restriction from a third party having the right to
furnish such Confidential Information; (b) has become generally available to
the public without breach of this Agreement by the Receiving Party; (c) at the
time of disclosure to the Receiving Party was known to it free of restriction;
or (d) the Disclosing Party agrees in writing is free of such restrictions. The
Receiving Party shall have the burden of proving (by written evidence) that any
of the aforementioned exceptions exist/apply.
4.
TERM. This Agreement takes effect on the
Effective Date, and continues in force for five years.
5.
NON-SOLICITATION. The Receiving Party agrees that, for the Term
of this Agreement and for three (3) years thereafter, the Receiving Party will not,
either directly or indirectly, solicit or attempt to solicit any client, lead,
employee or consultant of the Disclosing Party.
6.
GENERAL PROVISIONS.
a) Governing Law. This Agreement and any action related thereto
will be governed and interpreted by and under the laws of [your state], without
giving effect to any conflicts of laws principles that require the application
of the law of a different state. Any
legal action or proceeding arising under this Agreement will be brought
exclusively in the courts located in [your state], and the parties consent to the
personal jurisdiction and venue therein.
b) Severability. If any provision of this Agreement is, for
any reason, held to be invalid or unenforceable, the other provisions of this
Agreement will remain enforceable and the invalid or unenforceable provision
will be deemed modified so that it is valid and enforceable to the maximum
extent permitted by law.
c) Survival. This Agreement shall survive the termination
of my engagement and the assignment of this Agreement by Finder to any
successor or other assignee and shall be binding upon my heirs and legal
representatives.
d) Notices. Each Party must deliver all notices or other
communications required or permitted under this Agreement in writing to the
other Party at the address listed on the signature page, by courier, by
certified or registered mail (postage prepaid and return receipt requested), or
by a nationally-recognized express mail service. Notice will be effective upon receipt or
refusal of delivery. If delivered by
certified or registered mail, notice will be considered to have been given five
(5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service,
notice will be considered to have been given on the delivery date reflected by
the courier or express mail service receipt. Each Party may change its address
for receipt of notice by giving notice of the change to the other Party.
e) Waiver.
Any waiver or failure to enforce any provision of this Agreement on one
occasion will not be deemed a waiver of that provision or any other provision
on any other occasion.
f) Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which shall be taken together and deemed to be
one instrument.
IN WITNESS WHEREOF, the Parties hereto have
executed this Agreement.
RECEIVING PARTY DISCLOSING
PARTY
(Signature)
By:
___________________________________________
Title:
__________________________________________
Date: _____________________________________
|
(Signature)
By:
_________________________________________
Title:
_________________________________________
Date: ____________________________________
|
