Institutional Level Mutual Non-disclosure Agreement
Between (ensure all relevant institutions are included): __________________________________________________________________
a ________________________ (insert profession) residing at _________________ ______________________ in his/her capacity as ____________________________ (hereinafter referred to as ___________________________________)
a statutory body duly established under ___________ (state the relevant legislation and the appropriate programme/unit) herein represented by ________________ in his/her capacity as ___________________________ and he/she being duly authorized thereto (hereinafter referred to as __________________________ )
The parties have capabilities and expertise in using scientific knowledge and technological application to ___________________________________________ .
The parties possess proprietary information, technical knowledge, experience, specimens and data of a secret and confidential nature relating to the field as specified below, all of which are regarded by them as valuable commercial assets of a highly confidential nature.
During the course of business discussions, negotiations, meetings and activities including, without limitation, any on-site premises visits or demonstrations, between the parties, each party may receive, observe or otherwise have access to information, whether inside or outside the field, that (a) relates to the Disclosing Party’s past, present or future research, development, business activities, products, services and technical knowledge and (b) either has been identified in writing as confidential or is of such a nature (or has been disclosed in such a way) that it is obvious to the other party that it is claimed as confidential (“Confidential Information”). Confidential Information may equally well be written information or information transmitted verbally, visually, electronically or by any other means.
As used herein, the party disclosing Confidential Information is referred to as the “Disclosing Party” and the party receiving the Confidential Information is referred to as the “Recipient”.
The nature of the discussions, meetings or activities prompting this Agreement is to share information, research results, background intellectual property and the wish to exchange more information, including Confidential Information and material in this regard. For the purposes of __________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________
Now, therefore, the parties hereby agree as follows regarding Confidential Information:
1. USE OF CONFIDENTIAL INFORMATION
1.1 The Confidential Information of the Disclosing Party may be used by the Recipient only in connection with the purpose(s) set forth in this Agreement. The Parties agree to protect the confidentiality of each other’s Confidential Information in the same manner they protect the confidentiality of their own proprietary and Confidential Information of TK kind, but in any case using reasonable care.
1.2 Except as necessary for the purpose(s) set forth in this Agreement, the Confidential Information of the Disclosing Party may not be copied or reproduced by the Recipient without the Disclosing Party’s prior written consent. Should authorized copies of the Confidential Information be made, each party undertakes to reproduce in complete and identical form and wording the right of ownership of the Disclosing Party.
1.3 Each party shall in all events remain free to use, in the course of its business, its general knowledge, skills and experience incurred before, during or after the activities hereunder. (To this end, it is also recorded that nothing in this Agreement shall be construed as constituting an exclusive arrangement between the parties and both parties shall remain free to explore market opportunities in the field, unless otherwise agreed to in writing in a subsequent agreement.)
1.4 With respect to the purpose(s) set forth in this Agreement, neither party is authorized to use the name, logo or trademarks of the other in connection with any advertising, publicity or marketing or promotional materials or activities without the prior written consent of the other party. The Disclosing Party provides the Confidential Information “as is”.
1.5 The parties shall:
1.5.1 Treat as strictly confidential any and all Confidential Information given or made known to them arising from this association;
1.5.2 Keep all such Confidential Information obtained secret to third parties and only use it in co-operation with each other for the purpose expressly agreed upon by the Parties and to disclose same to their employees only on a need-to-know basis;
1.5.3 Accept responsibility for the observance of the secrecy agreement by their employees; and
1.5.4 If required, cause all of their employees who are directly or indirectly given access to the said proprietary and Confidential Information to execute secrecy undertakings in a form acceptable to the parties in order to protect the parties against the unauthorized disclosure of such Confidential Information to any third party, and to fully co-operate in the enforcement of such secrecy undertakings.
2. OWNERSHIP OF CONFIDENTIAL INFORMATION
2.1 All documents or other material objects containing and/or representing Confidential Information disclosed under this Agreement shall at all times remain the exclusive property of the Disclosing Party. No license or other rights in or to the material disclosed is granted by this Agreement, nor is any disclosure of Confidential Information under this Agreement, except as provided herein. All Confidential Information made available under this Agreement, including copies thereof, shall be returned to the Disclosing Party (or, upon such party’s request or consent, destroyed) forthwith with no further formality upon the first to occur of:
2.1.1 Completion of the purpose(s) set forth in this Agreement;
2.1.2 The reasonable request of the Disclosing Party; or
2.1.3 The cancellation of this Agreement.
2.2 Disclosure of Confidential Information shall not constitute any representation, warranty, assurance, guarantee or inducement by the Disclosing Party with respect to infringement of patents or other rights of third parties. No warranty or representation as to the accuracy, completeness, or technical or scientific quality of any Confidential Information is provided herein. Without restricting the generality of the foregoing, neither party makes any representation or warranty as to the merchantability or fitness for a particular purpose of any Confidential Information disclosed hereunder.
Nothing in this Agreement shall prohibit or limit either party’s use of information (including, but not limited to, ideas, concepts, know-how, techniques and methodologies):
3.1 Which at the time of disclosure is published or otherwise generally available to the public;
3.2 Which, after disclosure by the Disclosing Party, is published or becomes generally available to the public, otherwise than through any act or omission on the part of the Recipient;
3.3 Which the parties can show was in their possession at the time of disclosure and which was not acquired directly or indirectly from each other;
3.4 Rightfully acquired from others who did not obtain it under pledge of secrecy to either of the parties;
3.5 Which the Recipient is obliged to disclose in terms of an order of court, subpoena or other legal process.
3.6 In the event of either party receiving a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the other party, the Recipient shall promptly notify the Disclosing Party thereof.
It is acknowledged that the breach of this Agreement by the Recipient would cause the Disclosing Party irreparable injury not compensable in monetary damages alone. Accordingly, in the event of a breach, or a threat of a breach, the Disclosing Party, in addition to its other remedies, is entitled to a restraining order, preliminary injunction or similar relief so as to specifically enforce the terms of this Agreement or prevent, cure or reduce the adverse effects of the breach.
5. ABSENCE OF LICENCE It is expressly agreed between the parties that the disclosure of Confidential Information under this Agreement can in no way be interpreted as endowing the Recipient with any right whatsoever to intellectual or industrial property, patent or any other right relating to Confidential Information.
6. COMMENCEMENT AND DURATION
6.1 This Agreement shall operate as from the date of signature hereof and shall remain binding for a period of ____ (________________) years, unless terminated prior thereto by mutual written consent between the parties or superseded by another written agreement between the parties in the field.
6.2 In the event of the cancellation or termination of this Agreement for whatever reason, either prior to or at the time of expiry of the period mentioned in clause 6.1 above, the parties agree that after ____ (________________) years from the date of such cancellation, termination or expiry, they shall each be relieved from all obligations under this Agreement and that after such time has expired, they will rely on such patents or other intellectual property as they may then own for the protection of any Confidential Information disclosed to each other pursuant to this Agreement.
7. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of ________________________ (insert full name of country) and any dispute arising there from shall be adjudicated by a competent court in ____________________ (insert full name of country) and for these purposes the parties agree to the exclusive jurisdiction of the __________________________________________ courts for the adjudication of such disputes.
8. ENTIRE AGREEMENT
This Agreement is the only and exclusive agreement between the parties with respect to the subject matter of this Agreement, and it supersedes all prior or contemporaneous representations, promises, inducements, proposals, discussions and other communications.
9. GENERAL PROVISIONS
No furnishing of Confidential Information and no obligation hereunder shall be construed to obligate either party to:
9.1.1 Enter into any further agreement or negotiation with or make any further disclosure to the other party; nor shall it
9.1.2 Prevent either party from entering into any agreement or negotiation with any other third party regarding the same subject matter or any other subject matter; nor shall it
9.1.3 Prevent either party from pursuing its business in whatever manner it elects, even if this involves competing with the other party. Any Confidential Information containing estimates or forecasts shall not constitute binding commitments. Neither party shall directly or indirectly use, in an identical or modified form, any Confidential Information obtained from the other to its or a third party’s competitive advantage.
9.2 No public announcement or disclosure beyond those disclosures authorized for Confidential Information hereunder may be made by either party concerning this Agreement without the prior written approval of the other party.
9.3 If any clause or term of this Agreement should be invalid, unenforceable or illegal, then the remaining terms and provisions of this Agreement shall be deemed to be severable therefrom; and
9.4 Shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of this Agreement.
SIGNED at _______________________ this ______ day of __________________. AS WITNESSES (as appropriate):
1. _____________________________________ For __________________________________ _____________________________________ Full names
2. _______________________________________________________________ Capacity (duly authorized)
(Note: Care must be taken to avoid the indiscriminate use of technical jargon and, where appropriate, the document should be translated into local languages)
Title of Project: __________________________________________________________________ Synopsis of the Project (Clearly summarize what the project is about, the objectives, the partners, the outcome, benefits etc.)
Contribution of the Provider
Explain what the Recipient / Researcher expects from the Provider, including any targets that may be envisaged and assurance of authenticity.
Rights of Project Partners Include explanations on:
b) Amendment; and
Invite the Provider to feel free to ask any questions about the project.
Contacts: Include contact details of key project personnel