RE: Sample NDA
That will definitely work, but keep in mind that for most people the "Lawyer speak" makes it unclear to many readers what it is actually asking from them. If there is a potential of a long drawn-out court battle against a 3rd party contractor or such, something like this would be absolutely required.
In the case of an indy developer who couldn't afford a court battle if they WANTED to, enumerating and explaining in an email a set of points regarding this topic, explaining what is and is not acceptable, etc then having the other part respond to it stating they agree to the terms will be more beneficial to both parties. This will hold up in small-claims court just fine in just about any country, as long as you keep a record of the email.
That's just my thoughts on it.
Edit:
Here's an professional NDA for a middleware company I worked with.
Code:
Effective Date: <date>
(Date on or before the Confidential Information will be disclosed) <company> of <address>, ("<company>") and <user> of <address> ("User Company") are engaged in discussions in contemplation of a business relationship or have entered into a business relationship. During such discussions or as part of such relationship, <company> and Company expect to disclose to each other certain confidential trade and business information, and/or materials which the disclosing party (“Disclosing Party”) considers proprietary and both parties wish to ensure the confidentiality of such disclosures. Therefore the parties agree as follows:
1. The party to whom Confidential Information is disclosed (“Recipient”) agrees to protect in strict confidence, and agrees not to use or disclose Confidential Information of the Disclosing Party except for the purpose of establishing or maintaining a business relationship between the parties (“Purpose”). “Confidential Information” means the proprietary and trade secret information which is marked as confidential information at the time of disclosure, or, in the case of information disclosed orally, is designated as confidential at the time of disclosure. In all events, Confidential Information shall include source code provided or developed by either party.
2. The Recipient is prohibited from disclosing the Disclosing Party’s Confidential Information except to employees, contractors and agents who have a “need to know” such Confidential Information for the Purpose shown above and are obligated to use and disclose such Confidential Information only for such Purpose. No disclosure to, or use by, any other
person or entity is permitted without the Disclosing Party’s prior written consent.
3. No photograph, copy or facsimile of any materials or devices that contain or evidence Confidential Information may be made without the Disclosing Party’s prior written consent.
4. Notwithstanding the foregoing, the Recipient is not obliged to protect, or restrict the use or disclosure of any information (a) generally available to the public, (b) independently developed by Recipient without reliance on Confidential Information of the Disclosing Party, (c) rightfully obtained from a third party who is under no restriction with respect to the
use and disclosure of such information, or (d) approved for unrestricted release by the Disclosing Party in writing. In addition, the Recipient may disclose Confidential Information of the Disclosing Party where required by an order, requirement or request of a court or government authority, or otherwise required by law, provided that the Recipient provides the Disclosing Party with reasonable notice prior to such disclosure to allow the Disclosing Party a reasonable opportunity to seek a protective order or equivalent; the Recipient may also disclose Confidential Information as necessary (subject to the terms of an appropriate protective order) in an action to enforce or defend its rights under this agreement.
5. No license under any patents, copyright, trademarks or mask works is granted to or conferred upon either Party in this Agreement or by disclosure of any Confidential Information by one Party to the other as contemplated hereunder either expressly, by implication, inducement, estoppel or otherwise, and any license under such intellectual property rights must be express and in writing.
6. This agreement provides only for the handling and protecting of proprietary information and is not intended to be and shall not be construed to create a teaming agreement, joint venture, association, partnership, or other formal business or agency arrangement. Neither party has an obligation to enter into any other contract, subcontract, or other business relationship with the other party.
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7. The Disclosing Party represents and warrants that it has the right to disclose any Confidential Information provided to the Recipient in furtherance of the Purpose, without violating any agreement with, or right of, any other person or company. Confidential Information disclosed by the Disclosing Party may include Confidential Information of a third party, provided that the third party has author ized such disclosure. In such event, this agreement shall apply equally to such Confidential Information and shall inure to the benefit of such third party.
8. Nothing herein shall be construed as a warranty of the accuracy, worth or fitness of the information furnished under this agreement. Nothing in this agreement may be construed as compelling either party to disclose any Confidential Information to the other.
9. This agreement shall terminate (a) two (2) years after the Effective Date or (b) upon written request of either party, whichever is earlier. Upon termination of this agreement, the Recipient shall return to the Disclosing Party all materials and devices (including copies thereof) that contain or evidence Confidential Information of the Disclosing Party. The confidentiality obligations set forth in this Agreement shall bind the Parties for a period of five (5) years from the date of disclosure of Confidential Information, except that confidentiality obligations with respect to any technical information that constitutes a trade secret shall continue in effect for so long as the information remains a trade secret, and the provisions
hereof regarding ownership shall continue in effect for so long as necessary to give full effect thereto.
10. The Recipient agrees that, in the event of a breach of any provision hereof, the Disclosing Party may not have an adequate remedy in money or damages. Therefore, the Recipient agrees that, in such event, the Disclosing Party shall be entitled to apply for injunctive or other equitable relief, which relief will in no way limit the Disclosing Party right to obtain other remedies available under applicable law.
11. This Agreement constitutes the sole and entire agreement between the parties with respect to Confidential Information and all restrictions thereon; it supersedes any and all prior contemporaneous oral or written agreements, negotiations communication, understandings and terms, whether express or implied regarding Confidential Information and may not be amended except in writing signed by a duly authorized representative of the Parties. Any other written agreements between the parties duly signed by authorized representatives, including non -disclosure agreements, will not be affected by this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their successors and assigns, except that no assignment of any rights in Confidential Information required to be protected hereunder by the Recipient may be made without the prior written consent of the Disclosing Party. The waiver of any provision in any instance shall not be construed as a waiver in all other instances. This Agreement shall be governed by the laws of the State of <State of Company HQ>, without regard to its conflict of law provisions, and the parties hereto submit to the jurisdiction of the courts of <State of Company HQ>.
12. Where appropriate to give effect to the Purpose, references to <company> or <User Company> may include parent companies, and
majority owned subsidiaries of parent companies, provided that they are bound by the obligations set forth herein.
<company> <User Company>
Signed _________________________ Signed _________________________
Name _________________________ Name _________________________
Title _________________________ Title _________________________
Date _________________________ Date _________________________
(This post was last modified: 05-19-2013 05:03 PM by Rubeus.)
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