Here is a proposed confidentiality agreement. You can (a) use this as it is, (b) use it with your modifications, or (c) send us your own.
If you want to use the text below, highlight it, copy it, and paste it into a new MS Word document. Please be sure to print it on paper with
your company's letterhead, execute two copies, and send them to us.
If we agree, we will sign and return one as soon as practicable.
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CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
THIS AGREEMENT, is made and entered into this ___ day of ________, ____, by and between Rx Contracts, Inc., a California Corporation, located at 7040 Ave Encinas #104-338, Carlsbad, CA 92009 (“Company”), and _____________, located at _______________ (“Customer”), in connection with Company’s and the Customer’s consideration of the transactions and/or activities described below.
BACKGROUND
Company and Customer are each the owner of certain confidential proprietary information, including without limitation, information and data relating to financials, marketing, solicitation and promotion activities, sales activities, data processing services, operational procedures and processes, and other information and data (herein collectively called “Confidential Information”). Such Confidential Information may include, but is not limited to, data relating to customers, lists of customers, deals and distributors, distribution and other agreements, earnings, know-how, ideas, plans, designs and processes, including material compositions, circuit schematics, specifications, software, firmware, assembly drawings, manufacturing techniques, business plans, marketing plans, research and studies, and other financial information, plans, and other information relating to the business of the owner which is proprietary and confidential. Further, this Confidential Information is considered by the owner to be confidential and proprietary to the owner. Subject to and in accordance with the terms of this Agreement, Company and Customer each desire to learn more about the Confidential Information of the other in connection with the proposed transaction(s) presently contemplated by the parties, and the transactions themselves should any be agreed upon, and the parties do not wish to make the Confidential Information generally public or common knowledge.
NOW, THEREFORE, in consideration of the foregoing recitals and of the covenants and agreements hereinafter contained, it is hereby agreed as follows:
1. CONFIDENTIAL INFORMATION AND NON-DISCLOSURE. As a condition to each party furnishing Confidential Information to the other party from time to time, the parties are each requiring that the other party agree to treat confidentially and not to disclose to third parties such written or oral Confidential Information or any other Confidential Information either party or its respective agents furnish to the other party whether furnished on or after the date of this Agreement (collectively all of which shall constitute the Confidential Information). Neither party shall be required to furnish any information to the other party. All Confidential Information provided by either party to the other party on or after the date hereof shall be subject to the terms of this Agreement.
2. USE OF CONFIDENTIAL INFORMATION. Each party agrees to take measures to protect the confidentiality of the Confidential Information that, in the aggregate, are no less protective than those measures such party uses to protect the confidentiality of its own confidential or proprietary information (in no event, less than commercially reasonable measures). Each party agrees that it will not except in connection with consideration of the Proposed Transaction use the Confidential Information and that such information will be kept confidential by each party and each party’s Representatives (as herein defined) and shall not be disclosed to any firm or person; provided, however, that any of such Confidential Information may be disclosed to directors, officers, employees, agents and consultants and to individuals acting in similar capacities on each party’s respective behalf (the “Representatives”) who need to know such information for the purpose of evaluating certain cooperative activities between the parties (it being understood that such Representatives shall be informed of the confidential nature of such Confidential Information and shall be directed by each party to treat such information confidentially). Each party agrees it will not use or exploit the Confidential Information of the other party for its own benefit or that of any third party and may make only such use of the Confidential Information as is contemplated by this Agreement or as may otherwise be specifically authorized in writing by the disclosing party.
3. NO DISCLOSURE OF DISCUSSIONS. Without each party’s prior consent or except as required by law, neither party will, and each party shall direct its Representatives not to, disclose to any person either the fact that discussions or negotiations are taking place concerning the Proposed Transaction or the status thereof. The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, any corporation, Bank, partnership, or other legal entity.
4. NOTICE OF REQUIRED DISCLOSURE. In the event that either party is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information supplied by the other party or such other party’s Representative in the course of these dealings in connection with the Proposed Transaction, it is agreed that the party who has received such request will provide the other party with prompt notice of such request(s) so that the other party may seek an appropriate protective order and/or waive compliance with the provisions of this Agreement.
5. RETURN OF CONFIDENTIAL INFORMATION. In the event that the Proposed Transaction is not entered into or otherwise consummated between the parties or at the written request of either party, each party will promptly return to the other party its Confidential Information and all copies thereof, without retaining any paper copy thereof or any computer or other electronic record of such Confidential Information.
6. NO WARRANTY. Each party will endeavor to include in the Confidential Information such data or other information that it believes to be relevant and accurate. However, each party acknowledges that neither party nor any of their respective Representatives makes any warranty about the accuracy or completeness of the Confidential Information. Each party agrees that neither the other party nor its Representatives will have any liability to it resulting from the use of the other party’s Confidential Information consistent with the terms of this Agreement.
7. NO LICENSE. No license under any patent, copyright or other intellectual property right now or hereafter obtained is granted, agreed to be granted or implied by either this Agreement or the disclosure to the other party of Confidential Information. Nothing in this Agreement shall be construed to convey to either party any right, title or interest in any Confidential Information provided by the other party or any right, title or interest in any intellectual property of the parties including but not limited to trade secrets, copyrights or patents.
8. EXCLUSIONS. The term “Confidential Information” does not include information which (i) becomes generally available to the public other than as a result of a disclosure by the receiving party or its Representatives, (ii) was available on a non-confidential basis prior to its disclosure, (iii) becomes available on a non-confidential basis from a source other than either party or its Representatives provided such source is not bound by a confidentiality agreement with either party or its Representatives; or (iv) is already in the receiving party’s possession prior to disclosure hereunder.
9. REMEDIES. The parties agree that the Confidential Information is of a special, unique and extraordinary character and that disclosure of such information in violation of this Agreement may irreparably harm the party whose information is disclosed. For this reason, the parties agree that the party whose Confidential Information is disclosed shall be entitled to seek injunctive relief to further prevent use and/or disclosure in addition to other remedies available to it in law or in equity for breach of this Agreement, or, at its option, may sue for monetary damages.
10. TERM. With respect to each particular item of Confidential Information that is disclosed pursuant to this Agreement, the obligations of confidence imposed by this Agreement shall extend for as long as such information constitutes “Confidential Information” under the Agreement.
11. NATURE OF OBLIGATIONS. The parties agree that the obligations set forth herein are binding commitments of the parties to the extent set forth herein. However, nothing in this Agreement is intended to create any obligation on the part of either party to enter into a transaction or any other business relationship or cooperative activity. It is further understood and agreed that no failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
12. GOVERNING LAW; JURISDICTION. This Agreement and the undertakings set forth herein shall be construed and performed in accordance with the applicable law of the State of California. Any legal action or proceeding relating to this Agreement or its subject matter may be brought in any state or federal court located in San Diego County, San Diego, United States of America. Each party irrevocably consents to the personal jurisdiction of such courts and irrevocably waives any objection that such party may now or later have based on venue or forum non-conveniens with respect to any action or proceeding initiated in such courts.
13. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and understanding of the parties with respect to the transaction contemplated hereby and supersedes all prior agreements, arrangements and understandings relating to the subject matter hereof. No representation, promise, inducement or statement of intention with respect to the subject matter of this Agreement has been made by any party which is not embodied in this Agreement and neither of the parties shall be bound by or liable for any alleged representation, promise, inducement or statement of intention not so set forth. This Agreement may be amended, superseded or canceled, and any of the terms hereof may be waived, only by a written instrument specifically stating that it amends, supersedes or cancels this Agreement or waives any of the terms herein, executed by all parties or, in the case of a waiver, by the party waiving compliance. The failure of any party at any time to require performance of any provision herein shall in no manner affect the right at a later time to enforce the same. No waiver by any party of any condition, or of any breach of any term, covenant, representation or warranty, shall be deemed or constitute a waiver of any other condition, or breach of any other term, covenant, representation or warranty, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
14. ENFORCEABILITY. If at any time subsequent to the date hereof, any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force or effect, but the illegality or unenforceability of such provision shall have no effect upon, and shall not impair the enforceability of any other provision of this Agreement.
15. MISCELLANEOUS. Section headings contained in this Agreement are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person or entity other than the parties and their respective permitted successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. Each party and individual executing this Agreement represent and warrant that the individual executing this Agreement has been duly authorized to sign this Agreement and to bind the party on whose behalf such individual is executing.
For the Customer
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(signature and date)
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(printed name)
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For the Company
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(signature and date)
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(printed name)
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(title)
