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Non-disclosure agreement (mutual, premium)

This mutual non-disclosure agreement protects both parties to a contract by providing that neither party may disclose the other's confidential information. This is the premium version of our non-disclosure agreement template and as such is more comprehensive than our standard version, incorporating a wider range of provisions and addressing a wider range of circumstances.

If two businesses plan to work together, it may be important to safeguard information at the outset. An NDA can help the parties to attain this goal. Inventors seeking a partner or backer and businesses discussing a joint venture are examples of parties who might benefit from this template.

An NDA will help ensure that each party's trade secrets, business plans, product information, proprietary ideas and the like are not stolen or revealed to others. There are, however, limits to what an NDA can achieve. For example, this type of contract will not protect information that becomes public knowledge or is already in the public domain.

Both parties are identified in the document, and the term of the agreement is fixed. Each party's confidentiality restrictions and obligations are spelled out separately. These are identical in the template, but may be edited to reflect differences in the positions of the parties. The parties may agree the period of time for which the confidentiality obligations will remain in effect after termination of the contract.

The template provides that neither party may make publicly disclosures relating to the agreement. However, the parties may agree to specific permitted public disclosures.

Intellectual property rights are not assigned or transferred under this NDA, nor is there any licence of intellectual property rights.

A short warranties clause is included. The parties have the option of including an indemnity clause. This provides for more generous compensation in the event of a breach of contract.

Provisions for termination of the agreement are also included in this template, as are standard provisions relating to severability, breach of contract, changes to the terms of the contract, the transfer of contractual rights, non-enforceability by third parties and limitations of liability.

In the vast majority of cases, an NDA is targeted at prevention rather than cure. However, should an NDA fail to deter one party from breaching confidentiality, then, in addition to any tortious claim a party might have for breach of confidence, the party not in breach may be able to bring proceedings in contract to recover losses.

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Non-disclosure agreement (mutual, premium) contents

  1. Definitions: definitions.
  2. Term: commencement of term; end of term.
  3. First Party
    's confidentiality obligations:
    first party confidentiality undertaking; disclosure of confidential information by first party to certain persons; exceptions to first party's confidentiality obligations; disclosures of second party confidential information mandated by law etc; first party to stop using confidential information upon termination; first party to return or destroy confidential information following termination; first party confidentiality obligations after termination.
  4. First Party
    's publicity obligations:
    no public disclosures by first party; permitted public disclosures by first party.
  5. Second Party
    's confidentiality obligations:
    second party confidentiality undertaking; disclosure of confidential information by second party to certain persons; exceptions to second party's confidentiality obligations; disclosures of first party confidential information mandated by law etc; second party to stop using confidential information upon termination; second party to return or destroy confidential information following termination; second party confidentiality obligations after termination.
  6. Second Party
    's publicity obligations:
    no public disclosures by second party; permitted public disclosures by second party.
  7. Intellectual property rights: no assignment of intellectual property rights; no licence or limited licence to use first party confidential information; no licence or limited licence to use second party confidential information.
  8. Warranties: first party warranty of authority; second party warranty of authority; exclusion of implied warranties and representations.
  9. Indemnities: first party indemnifies second party upon breach; second party indemnifies first party upon breach.
  10. Termination: termination by either party at will.
  11. Effects of termination: surviving provisions upon termination; termination does not affect accrued rights.
  12. General: no waiver; severability; variation written and signed; no assignment without written consent; no third party rights; caveats to limits of liability; entire agreement; governing law; exclusive jurisdiction.
  13. Interpretation: statutory references; section headings not affecting interpretation; calendar month meaning; no ejusdem generis.
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