MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
Between
NCGS Incorporated
And
<<Insert Party Name>>
This Confidential Disclosure Agreement (“Agreement”), between
<<NCGS Incorporated>>, a Contract Research Organization (CRO) with a place of
business at 65 Society Street Charleston South Carolina, 29401 (hereinafter, “NCGS”), and
<<Insert Participant Name>> (hereinafter, “Participant”), with a place of business at
<<INCLUDE FULL MAILING ADDRESS>>
when signed by Participant, is effective as of <<Insert Date Issued to Site>> (“Effective Date”).
NCGS is willing to disclose certain information relating to Participant to enter into discussions that
would involve mutual exchange of information related to a possible research endeavor or business
transaction (a Master Services Agreement, a “MSA”) with NCGS. Some or all of the information that
NCGS or designees will disclose is confidential to the respective parties. Some of the information
given by Participant to NCGS is confidential. The party to this Agreement disclosing Confidential
Information (defined below) shall be known herein as the “Disclosing Party”, and the party to this
Agreement receiving such Confidential Information shall be known herein as the Recipient. If
applicable, Confidential Information of Sponsor given to Participant by Sponsor or given by NCGS
shall also be covered by this Agreement, and shall be considered the Confidential Information of
NCGS.
For the purposes of this Agreement the parties agree as follows:
1.
Confidential Information
1.1
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Definition. Except as specified in Section 1.2 (Exclusions), below, “Confidential
Information” is any confidential or proprietary information, data, processes, technical
or business information directly or indirectly related to the Study that NCGS or the
Sponsor transmits to Participant in writing, machine readable or other tangible form,
or disclosed orally, or disclosed visually or that the Participant has provided to NCGS
or the Sponsor. Also considered Confidential Information is anything that Participant
observes while on-site at NCGS or a Sponsor facility, whether or not directly related
to the study.
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1.2
Exclusions. Confidential Information does not include information that
a. is already known to the Recipient prior to the disclosure by Disclosing Party or
their designee as evidenced by its written records; or
b. is publicly available or is otherwise in the public domain at the time of
disclosure; or
c. becomes part of the public domain after disclosure by any means other than
breach of this Agreement by Recipient; or
d. is obtained by Recipient, free of any obligations of confidentiality, from a third
party who has a lawful right to disclose it; or
e. is independently developed by the Recipient by persons not having access to the
Confidential Information of the Disclosing Party.
2.
Obligations of Confidentiality
2.1
Obligations. Unless Disclosing Party provides prior written consent, Recipient will
not
a. use Confidential Information for any purpose other than that authorized in this
Agreement, or
b. disclose any Confidential Information to any third party other than contractors,
agents, or affiliates who have a need to know in connection with the purpose of
this Agreement and who are bound by obligations of confidentiality substantially
similar to those in this Agreement.
2.2
Distribution: Each party agrees to keep the Confidential Information of the other
parties in strict confidence and agrees not to use such Confidential Information for
any purpose other than its evaluation of the MSA, nor to reveal such Confidential
Information to any unrelated third party unless otherwise agreed to in writing by the
Disclosing Party. Each party may disclose Confidential Information only to
such of its employees and agents who, in such party's judgment, have a need
to know such Confidential Information in connection with the evaluation of
the MSA, provided that such persons are legally bound to keep such
information confidential as provided in this Agreement.
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2.3
Liability. Each Party agrees that it shall be responsible for any breach of this
Agreement by any of its agents or employees. Recipient is liable to Disclosing
Party (and is liable to Sponsor if Sponsor’s Confidential Information was disclosed)
for any unauthorized use or disclosure of Confidential Information by any third party
to whom Recipient discloses it under Section 2.1.b, above.
2.4
Notification of Unauthorized Disclosure. Each party will notify the other
immediately in writing if it becomes aware of any unauthorized disclosure in breach
of the obligations of this Agreement and will, at the request of the other, take all such
steps as are necessary to prevent further disclosure.
2.5
Disclosure Required by Law. If a party is required by law to disclose any
Confidential Information pursuant to a requirement of a governmental agency or
court, the party shall promptly notify the other party of such requirement; such
disclosure will not be considered a breach of this Agreement so long as Recipient
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a.
b.
c.
notifies the other party in writing as far as possible in advance of the disclosure
so as to allow the other party to take legal action to protect its Confidential
Information as appropriate and to seek an appropriate protective order or other
means to protect the Confidential Information; and
discloses only that information required to comply with the legal requirement;
and
continues to maintain the confidentiality of this Confidential Information with
respect to all other third parties.
2.6
Survival of Obligations. The obligations of confidentiality in this Agreement will
survive termination of the Agreement and will continue for a period of five years
after termination.
2.7
Public Announcement and Disclosure: Each party agrees that, except as
required by federal or state securities or other applicable laws, no party shall
publicly announce or disclose the existence of this Agreement or its terms and
conditions, or advertise or release any publicity regarding this Agreement,
without the prior written consent of the other parties.
3.
Damages. Each party acknowledges that the Confidential Information is proprietary
to the party owning such, and is highly valuable and that damage could result to the
Disclosing Party if Confidential Information is disclosed to any third party. Each
party agrees that the Disclosing Party shall be entitled to equitable relief, including
injunction and specific performance, in the event of any breach or threatened breach
of this Agreement, in addition to all other remedies available to the Disclosing Party
at law or in equity. 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. The prevailing
party in any action to enforce any term of this Agreement shall be entitled to
reasonable attorneys fees and costs.
4.
Return of Confidential Information
4.1
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Return. If requested by Disclosing Party in writing, Recipient will return all
Confidential Information (including all copies made by the Recipient) immediately.
To the extent permitted by law or applicable regulation, Recipient will also destroy
all documents prepared by Recipient that contain Confidential Information or redact
all such Confidential Information from those documents. However, Recipient may
retain a single archival copy of the Confidential Information for the sole purpose of
determining the scope of obligations incurred under this Agreement. All analyses,
compilations, studies and other documents prepared by the Recipient on the basis of
such Confidential Information (“Recipient’s Notes”) shall be kept in strict confidence
and not be used for any purpose other than the evaluation of the MSA, provided,
however, for the avoidance of doubt, that the Recipient shall not be under any
obligation to share with or disclose the Recipient’s Notes to the Disclosing Party.
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5.
4.2
Exceptions. Exceptions to the requirement to return or destroy materials
incorporating Confidential Information, the Recipient
(i)
may retain one copy of the Confidential Information in its legal files solely
for purposes of monitoring its ongoing obligations under this Agreement and
(ii)
shall not be under any obligation to destroy or return/provide to the
Disclosing Party the Recipient’s Notes. The Recipient agrees to certify to the
Disclosing Party in writing, upon a return or destruction of the Confidential
Information, that the provisions of this paragraph have been complied with.
For purposes of this Agreement, the term “documents” or “materials” shall
include all information fixed in any tangible medium of expression, in
whatever form or format.
4.3
Archival Copy. If Disclosing Party requests return of Confidential Information and
Recipient retains an archival copy of the Confidential Information, the obligations of
confidentiality as to that archival copy continue for so long as the archival copy is
retained.
Term and Termination
5.1
5.2
Term. The term during which disclosures may be made and received under this
Agreement will be two year from the Effective Date unless terminated earlier by any
party or extended by mutual agreement. All obligations of confidentiality herein shall
extend for a period of five (5) years from the date of termination or expiration of this
Agreement.
Effect of Termination. The confidentiality obligations in Section 2 (Obligations of
Confidentiality) and Section 4 (Archival Copy) will survive termination of this
Agreement and will continue for the time periods specified in those Sections. All
other provisions that by their nature and intent remain valid after the term of this
Agreement will also survive termination.
6.
No Other Rights Granted. This Agreement does not convey or imply a license or any other
interest in any NCGS or Sponsor intellectual property other than the right to use Confidential
Information as authorized in this Agreement, nor does it obligate either party to enter into any
further agreement with the other party. No rights or obligations other than those expressly
recited herein are to be implied from this Agreement. Nothing herein shall in any way affect
the present or prospective rights of the parties under the patent and copyright laws of any
country, or be construed as granting any license under any present or future patent or
application therefore of any party.
7.
Representation and Warranty: Each Disclosing Party makes no representation or
warranty as to the accuracy or completeness of the Confidential Information provided
by it. The Confidential Information being disclosed pursuant to this Agreement is
disclosed with the express understanding that no party hereto is obligated to enter into
any further agreement relating to a possible MSA.
8.
No Obligation to Disclose. The parties agree that no party is under any obligation to
disclose Confidential Information by virtue of this Agreement.
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9.
Amendment. This Agreement may be modified only by a document signed by both parties
and identified as an Amendment to this Agreement
10.
Affiliates and Designee. As used in this Agreement, the term “affiliate” or designee” means
any entity that directly or indirectly controls, is controlled by, or is under common control
with the named party.
11.
Entire Agreement. This Agreement represents the entire understanding and agreement
between the parties relating to this subject matter and supersedes any previous understanding,
commitments, or agreements, oral or written regarding the subject matter hereof. South
Carolina law applies as to this Agreement. Venue and jurisdiction for any legal proceedings
with regard to this Agreement shall be in Charleston County, SC.
12.
This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which shall constitute the same agreement. Signatures to this
Agreement transmitted by facsimile, by electronic mail in “portable document format”
(“.pdf”), or by any other electronic means which preserves the original graphic and pictorial
appearance of the Agreement, shall have the same effect as physical delivery of the paper
document bearing the original signature.
The remainder of this page has been intentionally left blank.
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The parties hereto, intending to be legally bound hereby, have caused this Agreement to be
duly executed by their authorized representatives, effective as of the earliest date indicated
within this document or written below.
Agreed to and Accepted by:
<<Insert Site / Vendor Participant Name>>
By:
___________________________
Printed Name:
____________________
Title:
___________________________
Date:
___________________________
NCGS Incorporated Legal Representative
By:
____________________________
Printed Name: _______________________
Title:
____________________________
Date:
____________________________
Form:
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