AGREEMENT TO EXCHANGE INFORMATION ON A CONFIDENTIAL BASIS

January 4, 2024
Start a Business

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Update this template as necessary based on the laws in your municipality.

THIS AGREEMENT is made, entered into, as an agreement of <DATE> between <Company 1>, hereinafter referred to as “<Company 1>,” and <Company 2>, hereinafter referred to as “<Company 2>.”

Recitals:

WHEREAS, <Company 2> and <Company 1> intend to discuss possible business arrangements;

WHEREAS, in the course of such discussions, information and data including, without limitation, writings, drawings, choreography, videos, documentation, and similar material provided to <Company 2> or <Company 1> by their clients, may be exchanged which may be proprietary, confidential, or competition-sensitive to the party disclosing it; and

WHEREAS, <Company 2> and <Company 1> wish to protect such disclosed proprietary, confidential, or competition-sensitive information from unauthorized use and disclosure by the receiving party.

Now, Therefore, <Company 2> and <Company 1> Hereby Agree That:

In order to be eligible for the protection afforded by this Agreement, proprietary, confidential, or competition-sensitive information disclosed by one party to the other pursuant to this Agreement shall be:

(a) disclosed in written or other tangible form and designated by an appropriate stamp, marking, or legend thereon to be of a proprietary, confidential, or competition-sensitive nature to the disclosing party; and/or

(b) identified, if orally or visually disclosed, at the time of such disclosure as proprietary, confidential, or competition-sensitive to the disclosing party, provided, however, that the disclosing party shall reduce to writing all such orally or visually disclosed proprietary, confidential, or competition-sensitive information, apply written proprietary or confidential legends or markings thereon, and deliver the same to the receiving party within thirty (30) days of said oral or visual disclosure. During that thirty (30) day period, the latter information shall be protected, but failure to so identify, reduce to writing, mark, and deliver such orally or visually disclosed information in the manner prescribed shall relieve the receiving party of all confidential obligations with respect to said disclosed information.

Proprietary, confidential, or competition-sensitive information meeting the conditions of this section shall hereinafter be referred to as the “INFORMATION.”

Each party receiving INFORMATION disclosed to it by the other party pursuant to this Agreement shall not:

(a) disclose such INFORMATION to any third party; nor

(b) disclose such INFORMATION to any person within its organization not having a “need to know” in order to carry out the purposes of this Agreement; nor

(c) make copies of the INFORMATION except such number of copies as is strictly necessary for the receiving party to carry out the purposes of this Agreement; nor

(d) use such INFORMATION for any purpose other than that expressly contemplated by this AGREEMENT.

A receiving party shall not be liable for any unauthorized disclosure and/or use of the INFORMATION disclosed to it if the same:

(a) is disclosed and/or used by such receiving party after a period of two (2) years has elapsed from the date of receipt of the INFORMATION; or

(b) is disclosed and/or used by such receiving party following the prior written approval of the disclosing party.

Neither party shall be liable for the inadvertent or accidental disclosure of the INFORMATION provided that the party has exercised the same degree of care that it normally exercises to preserve its own proprietary, confidential, or competition-sensitive information and that such degree of care shall, in no case, be less than due care, and, provided further, that upon discovery of such inadvertent or accidental disclosure, the disclosing party is notified and all reasonable steps are taken to retrieve such disclosed INFORMATION and to prevent any further disclosure of the INFORMATION.
The provisions of this Agreement shall not apply in the event that the INFORMATION:

(a) is, at the time of disclosure, or later becomes, known to the general public (other than as a result of the breach of this Agreement); or

(b) was previously known, and can be shown to have been so known by competent written evidence, to the receiving party before receipt thereof from the disclosing party; or

(c) is received by the receiving party, without any obligations of confidentiality, from a third party who has the legal right to disclose the same; or

(d) is independently developed by the receiving party as shown by competent written evidence.

The term of this Agreement shall commence upon the effective date thereof and shall terminate two (2) years after the last transaction between <Company 1> and <Company 2> (invoices, payments, formal transmission of INFORMATION). Only INFORMATION communicated between the parties during said term shall be subject to the protections of this Agreement.
All INFORMATION, including all copies thereof, shall remain the property of the disclosing party. All INFORMATION and copies thereof shall be returned to the disclosing party upon the occurrence of the first of the following events:

(a) within thirty (30) days after the termination of this Agreement; or

(b) upon completion of the purpose for which the INFORMATION was exchanged; or

(d) upon the determination by the receiving party that it no longer desires to possess the INFORMATION.

Each party acknowledges:

(a) that the INFORMATION is proprietary and competitively valuable to the disclosing party;

(b) that the unauthorized use or disclosure of the INFORMATION would cause irreparable harm to the disclosing party;

(c) that the disclosing party has taken, is taking, and will continue to take, all reasonable measures to protect its information;

(d) that the disclosing party has taken, is taking, and will continue to take, all reasonable measures to protect its information;

(e) that, by this Agreement, the disclosing party is taking reasonable steps to protect the confidentiality of its information; and

(f) that the rights and obligations of the parties under this Agreement may be enforced by a decree of specific performance issued by a court of competent jurisdiction. The latter shall not be a party’s exclusive remedy.

Neither party warrants that the INFORMATION it is disclosing hereunder will meet the requirements of the other party or that such INFORMATION, when combined with other information or when used in a particular manner by the recipient, will be sufficient or suitable for the recipient’s purposes. Neither party assumes any responsibility or liability whatever under this Agreement for the results of use of the INFORMATION by the recipient or its customers or agents.
This Agreement is not intended to constitute, create, give effect to, or otherwise recognize a joint venture, partnership or formal business entity of any kind, and the rights and obligations of the parties shall be limited to those expressly set forth herein. Any exchange of INFORMATION under this Agreement shall not be deemed as constituting any offer, acceptance, or promise of any future contract or amendment to any contract which may exist between the parties. Nothing herein shall be construed as providing for the sharing of profits or losses arising out of the efforts of either or both parties. Each party shall act as an independent contractor and not as an agent of the other for any purpose whatsoever, and neither shall have any authority to bind the other.
No license is created under this Agreement, nor shall any be implied therefrom, under any patent, patent application, copyright, trade secret, know-how, or other intellectual property right of either party.
This Agreement shall be governed by and interpreted in accordance with the laws of the <update your municipality>
The effective date of this Agreement shall be the date written on the first page hereof.
For INFORMATION disclosed in accordance with and during the term of this Agreement, the obligations contained in Paragraph 2 shall survive the termination of this Agreement.
This is the entire Agreement between the parties concerning the exchange and protection of proprietary or confidential information and it supersedes any prior written or oral agreements relating hereto. This Agreement may not be amended or modified except by subsequent agreement in writing signed by duly authorized representatives of the parties.
NONSOLICITATION/NO-HIRE PROVISION <delete if not relevant>– During the term of this Agreement and for a period of twenty-four (24) months thereafter, neither party shall, directly or indirectly, separately or in association with others, knowingly hire or solicit for hire an employee of the other party who is associated with the efforts under this Agreement. This restriction shall further prohibit either party from hiring an employee of the other party as a result of the placement of any job advertisement in the general media or other general solicitation of employment not specifically directed to the other party or its employees; and additionally, that this provision shall prohibit a party from specifically inducing or otherwise encouraging the other party’s employee to respond to such placement or advertisement.

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed in duplicate originals by their duly authorized representatives.

AGREED: