Free Confidentiality Agreement /Non-Disclosure & Circumvention Agreement

Confidentiality, Non-Disclosure and
Non-Circumvention Agreement

This Agreement (the “Agreement”) effective as of this ___ day of _______________, 20_____, is by and between _________________________________________ (“Disclosing Party”) and _____________________________________________ (the “Receiving Party”).

Confidential Information

The Receiving Party recognizes and acknowledges that the Receiving Party has and will have access to confidential and proprietary information of the Disclosing Party which will constitute valuable, special, and unique assets of the Disclosing Party. The term "Proprietary Information" shall mean the following information:
________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

Non-Disclosure

The Receiving Party covenants and agrees that it shall have the affirmative obligation to:

(i) hold the Confidential Information in its strictest of confidence;

(ii) not use the Confidential Information for any personal gain or detrimentally to the Disclosing Party;

(iii) take all steps necessary to protect the Confidential Information from disclosure and to implement internal procedures to guard against such disclosure;

(iv) not disclose the fact that the Confidential Information has been made available, that discussions or negotiations are taking place or have taken place or any of the terms, conditions or other facts with respect to the transaction; and

(v) not disclose or make available all or any part of the Confidential Information to any person, firm, corporation, association, or any other entity for any reason or purpose whatsoever, directly or indirectly, unless and until such Confidential Information becomes publicly available other than as a consequence of the breach by the Receiving Party of his confidentiality obligations hereunder.

This Section shall survive and continue after any expiration or termination of this Agreement and shall bind Receiving Party, its agents, representatives, successors, heirs and assigns.


Exceptions to Confidential Information

The Receiving Party shall not be restricted from disclosing or using Confidential Information that:

(i) was freely available in the public domain at the time it was communicated to the Receiving Party by the Disclosing Party;

(ii) subsequently came to public domain through no fault of the Receiving Party;

(iii) is 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;

(iv) is independently developed by the Receiving Party or its representatives without reference to any information communicated to the Receiving Party by the Disclosing Party;

(v) is provided by Receiving Party in response to a valid order by a court or other governmental body, was otherwise required by law; or

(vi) is approved for release by written authorization of an officer or representative of the Disclosing Party;

Use or Disclosure of Confidential Information

Receiving Party shall only use the Confidential Information for the purpose of _______________________________________________ and shall not use the Confidential Information for its own purposes or the purposes of any other party. Receiving Party shall disclose the Confidential Information received under this Agreement to any person within its organization only if such persons have a need to know. Receiving Party shall advise each person to whom disclosure is permitted that such information is the confidential and proprietary property of the Disclosing Party and may not be disclosed to others or used for own purpose. This Section shall survive and continue after any expiration or termination of this Agreement and shall bind Receiving Party, its employees, agents, representatives, successors, heirs and assigns.

Notice of Disclosure

In the event that the Receiving Party receives a request or is required (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose all or any part of the Confidential Information, the Receiving Party agrees, if legally permissible, to (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such request or requirement, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such request or requirement and (c) assist the Disclosing Party in seeking a protective order or other appropriate remedy; provided, however, that the Receiving Party shall not be required to take any action in violation of applicable laws. In the event that such protective order or other remedy is not obtained or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall not be liable for such disclosure unless disclosure to any such tribunal was caused by or resulted from a previous disclosure by the Receiving Party not permitted by this Agreement

Return of Confidential Information

Upon request from the Disclosing Party or upon termination of negotiations and evaluations between the parties, Receiving Party will promptly deliver to Disclosing Party all originals and copies of all documents, records, software programs, media and other materials containing any Confidential Information. Receiving Party shall also return to Disclosing Party all equipment, files, software programs and other personal property belonging to Disclosing Party. Receiving Party shall not be permitted to make, retain, or distribute copies of any Confidential Information and shall not create any other documents, records, or materials in any form whatsoever that includes the Confidential Information.

Non-Solicitation

The Receiving Party covenants and agrees that for a period of ______________________ years, Receiving Party shall not, without the prior written consent of the Disclosing Party, directly or indirectly, whether for his own account or on behalf of any person, firm, corporation, partnership, association or other entity or enterprise, solicit, recruit, hire or cause to be hired any employees of the Company or any of its affiliates, or any person who was an employee of the Company during ___________________________.

Noncompetition

Receiving Party agrees that for a period of _______________ years, Receiving Party shall not engage, directly or indirectly, as an employee, officer, contractor, partner, manager, agent, owner or in any other capacity, in any competition with the Company or any of its subsidiaries.

Indemnification

Receiving Party agrees to indemnify and keep the Disclosing Party at all times fully and effectively indemnified in respect of any and all claims, demands, losses, damages, liabilities, costs and or expenses of any kind whatsoever incurred by the Disclosing Party which arise out of or in connection with any breach of this Agreement by the Receiving Party.

Notice

Any notice provided for in this Agreement must be in writing and must be either personally delivered, mailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the Receiving Party at the address below indicated:

To the Disclosing Party:

________________________

________________________

________________________

To Receiving Party:
________________________

________________________

________________________

or such other address or to the attention of such other person as the Receiving Party shall have specified by prior written notice to the Disclosing Party.

Miscellaneous

(a) This Agreement sets forth the entire Agreement and understanding between the parties and supersedes all prior oral and written agreements and understandings between them relating to the subject matter of this Agreement. This Agreement may not be modified or discharged, in whole or part, except by an agreement in writing signed by both parties. This
Agreement may not be assigned or otherwise transferred by either party without the prior written consent of the non-transferring party.

(b) This Agreement will be binding upon and inure to the benefit of the parties hereto and each party’s respective successors and assigns.

(c) In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties hereto shall be construed and enforced as if the Agreement did not contain the particular provision(s) held to be unenforceable.

(d) This Agreement shall be governed by and construed in accordance with the laws of the state of _________________________, without regard to its conflict of laws provision.

(e) Each party hereto represents and warrants that it has the full power and authority to enter into and perform this Agreement, and each party knows of no law, rule, regulations, order, agreement, promise, undertaking or other fact or circumstance which would prevent its full execution and performance of this Agreement.

(f) This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement.

IN WITNESS WHEREOF, the parties hereto have executed this agreement on the __________ day of ____________________, 20______________.

By: _____________________________ By: _____________________________

Date: _____________________________ Date: ____________________________

Address: ___________________________ Address: _________________________