This Non-Disclosure Agreement (this “Agreement”) is made as of [DATE], by and between [NAME OF PROSPECTIVE BUYER] (“Interested Party”) and [NAME OF IP OWNER] (the “IP Owner”).
WHEREAS, Interested Party and IP Owner mutually desire to engage in an exchange of information that may lead to a business relationship or transaction; and
WHEREAS, Interested Party and IP Owner, in the course of their interactions, may disclose to each other “Confidential Information” as defined in Section 1 below, and do not wish to convey any interest or copyright therein to each other nor to make such Confidential Information public or common knowledge.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and sufficient consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. CONFIDENTIAL INFORMATION. For purposes of this Agreement, the term “Confidential Information” shall mean the following: (i) any additional information provided by the IP Owner, including but not limited to claim charts, patent proof packages, and any related disclosures and analyses, including programs, designs, drawings, formulas, regardless of medium or format that is disclosed by the IP Owner in the course of discussions, studies, or other work undertaken between the parties; or (ii) any communication between the parties, whether in oral, written, graphic, magnetic, electronic, or other form, that is either conspicuously marked “confidential” or “proprietary,” is known or reasonably should be known by the other party to be confidential or proprietary, or is of a confidential or proprietary nature, and that is made in the course of discussions, studies, or other work undertaken between the parties. Confidential Information shall not include Non-Protected Information, as such term is defined in Section 6 below.
2. NON-DISCLOSURE REQUIREMENT. Both Interested Party and IP Owner and their respective employees and agents agree that during the period of their discussions and any future business relationship and for a period of three (3) years after the later of the termination of such discussions or the termination of such business relationship, the recipient of Confidential Information will not at any time disclose to any person or use for its own benefit or the benefit of anyone else, Confidential Information of the other party, without the prior express written consent of a corporate officer of the party whose information is being disclosed.
3. DISCLOSURES TO THIRD PARTIES. Prior to disclosure of any Confidential Information to any third party with the prior written consent of the disclosing party pursuant to Section 2 above, the recipient of such Confidential Information will obtain from said third party a written agreement to (i) hold all Confidential Information in confidence and not to use it for any purpose except as it relates to discussions or any subsequent business relationship between the parties; and (ii) return all Confidential Information to the party from whom said Confidential Information was received immediately after the third party has completed its work.
4. COMMON INTEREST PRIVILEGE. The parties have a common, joint and mutual legal interest in cooperating with each other with regard to any project or transaction involving the Confidential Information, subject to the terms of this Agreement, and accordingly the parties will treat their communications and those of their counsel relating to the Confidential Information as protected by the common interest privilege. Furtherance of the project or transaction may require the exchange of proprietary documents and information, the joint development of legal strategies and the exchange of attorney work product developed by the parties and their respective counsel (collectively, the “Common Interest Materials”). In order to further their common interests, each party or its counsel will provide the Common Interest Materials to the other party and its counsel. The purpose for the disclosure of the Common Interest Materials is to support due diligence with respect to the project or transaction. Any Common Interest Materials exchanged will continue to be protected under any applicable privileges and no such exchange will constitute a waiver of any applicable privilege or protection. Further, any counsel or consultant (e.g., a damages expert) retained by a party or its counsel to assist in the project with respect to the Common Interest Materials shall be bound by, and entitled to the benefits of, this Agreement if such party agrees in writing to be bound by the terms of this Agreement or otherwise the party retaining such party shall be responsible for such party’s failure to comply with the applicable terms of this Agreement.