NONDISCLOSURE
AGREEMENT
THIS NONDISCLOSURE AGREEMENT (the "Agreement")
is entered into as of _______________, 200_ by and between
ByYourSite, a solpropriatorship with its principal place
of business at _______________________________, and ______________,
a _________ corporation with its principal place of business
at ____________________________.
WHEREAS, each party (the "Disclosing
Party") desires to provide the other (the "Recipient")
with certain confidential and proprietary information concerning
_______________________________ ("Confidential Information"),
which Confidential Information may include, without limitation,
marketing plans, research and development memoranda, proposal
and other documentation, information containing trade secrets
and know-how and financial information;
IT IS AGREED, in consideration of the covenants
contained herein, as follows:
1. Recipient will maintain all Confidential
Information disclosed hereunder by the Disclosing Party
in confidence and shall not use or exploit such information
or disclose such Information to any third party other than
those of its employees or consultants with a need to know
such Information; provided that each such employee or consultant
must execute or have executed an agreement under which he
or she is bound by the obligations of Recipient hereunder.
Recipient will not use or exploit the Confidential Information
except for the purpose of: ____________________________.
Recipient will safeguard the Confidential Information with
the same degree of care which it uses to protect its own
confidential information and in no event less than a reasonable
standard of care.
2. This Agreement will not apply to any Confidential
Information which (i) is already lawfully in Recipient's
possession (unless received pursuant to a nondisclosure
agreement, (ii) becomes generally available to the public
through no fault or breach of Recipient or breach of any
other obligation of confidentiality owed to the Disclosing
Party, (iii) is disclosed to Recipient by a third party
who may transfer or disclose such Information without restriction,
(iv) is required to be disclosed by Recipient as a matter
of law; provided that Recipient will use all reasonable
efforts to provide the Disclosing Party with prior notice
of such disclosure and an opportunity to appear and object
to such disclosure, (v) is disclosed by Recipient with the
Disclosing Party's approval and (vi) is independently developed
by Recipient without any use of Confidential Information;
provided that, in all cases (except as set forth in (iv)
above), Recipient will use all reasonable efforts to give
the Disclosing Party 10 days' prior written notice of any
disclosure under this Section 2. Further, this Agreement
will only apply to Confidential Information which is either
(a) marked as confidential at the time of disclosure; or
that is (b) ummarked, e.g. orally disclosed, but treated
as confidential at the time of disclosure and is designated
as confidential in a written memorandum sent to Recipient
within 30 days of disclosure, summarizing the Confidential
Information sufficiently for identification.
3. The Disclosing Party warrants that it
has the right to disclose the Confidential Information to
Recipient. The Confidential Information disclosed hereunder
remains the property of the Disclosing Party and no license
or other rights in or to such Information, including rights
under any trade secrets, copyrights or patents, is granted
to Recipient hereby. THE CONFIDENTIAL INFORMATION DISCLOSED
HEREUNDER IS PROVIDED "AS IS" AND THE DISCLOSING
PARTY MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY
OR COMPLETENESS THEREOF.
4. Recipient acknowledges that the Disclosing
Party will suffer irreparable harm on any unauthorized disclosure
of Confidential Information by Recipient. Accordingly,
on any breach hereof by Recipient, the Disclosing Party
will be entitled to equitable relief, including injunctive
relief, in addition to any other remedies it may have at
law or in equity.
5. The parties are entering into this Agreement
as independent parties and nothing herein shall be deemed
to create any principal/agent, joint venture or other business
relationship between the parties hereto. The Disclosing
Party acknowledges that Recipient may currently or in the
future be developing information internally, or receiving
information from other parties, that may be similar to the
Disclosing Party's Confidential Information. Accordingly,
nothing in this Agreement shall be construed as a representation
or inference that Recipient will not independently develop
products, for itself or for others, that compete with the
products or systems contemplated by Disclosing Party's Confidential
Information.
Further, nothing herein shall be construed
in any way to require Recipient to do business with the
Disclosing Party or to preclude Recipient from doing business
with any other _____________ company, regardless of whether
such company's products have the capacity and capabilities
substantially similar to those of Disclosing Party's products
or whether such company is a competitor of Disclosing Party.
6. This Agreement is effective as of the
date first above written and may be terminated by either
party by written notice to the other. On termination or
on request by the Disclosing Party, Recipient will deliver
to the Disclosing Party all copies, notes, packages, computer
memory media and all other materials containing Confidential
Information and will not retain any copies thereof. The
Recipient will hold the Confidential Information in confidence
for a period of five years after termination.
Notwithstanding the foregoing, the Receiving
Party shall be free to use for any purpose the residuals
resulting from access to or work with the Disclosing Party's
Confidential Information; provided that the Receiving Party
shall maintain the confidentiality of any such Confidential
Information incorporated in such residuals. "Residuals"
shall mean information in non-tangible form which is retained
by persons who have had access to the Confidential Information,
including ideas, concepts, know-how or techniques. Neither
party shall have any obligation to limit or restrict the
work of such persons or to pay royalties for any work resulting
from the use of residuals. However, the foregoing shall
not be deemed to grant to either party a license under the
other party's copyrights or patents.
7. Neither party shall publicly disclose
the existence of this Agreement or its terms and conditions
without the prior written consent of the other party. This
Agreement constitutes the entire agreement governing confidentiality
between Disclosing Party and Recipient and supsersedes all
prior agreements, negotiations and understandings, whether
oral or written. Recipient may only export Confidential
Information provided hereunder as permitted by law. This
Agreement may only be amended in a writing signed by both
parties and shall be binding upon each party's successors
and assigns; provided that neither party may assign this
Agreement or its rights or obligations hereunder without
the other party's prior written consent. This Agreement
will be governed by and construed in accordance with the
laws of the State of California as applied to agreements
entered into and to be performed entirely within California
by California residents. In the event of any litigation
or arbitration arising under or related to this Agreement,
the losing party shall reimburse the prevailing party for
its reasonable attorney's fees and costs of suit, all of
which shall be included as a part of the order, judgment
or award rendered in such proceeding.
By: ____________________________
___________________________
By: _____________________________
________________________
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