NON DISCLOSURE AGREEMENT
This Nondisclosure Agreement ("Agreement"), effective as of {DATE}, is entered into between
{NAME OF COMPANY}. ("Discloser"), and {NAME OF RECEPIENT/DEVELOPER}
( Recipient”), for the purpose of protecting and preserving the confidential and/or proprietary
nature of information to be disclosed or made available by Discloser and clients of Discloser to
Recipient under this Agreement. Accordingly, the parties agree as follows:
1. Confidential Information. "Confidential Information" (Information) means all information,
whether written or oral, and in any form, which is proprietary to the Discloser or their clients and
is not generally known, and which relates to Discloser’s or their clients’ business or technology,
whether disclosed directly or indirectly, including, without limitation, prices, trade secrets,
manuals, specifications, reports, flowcharts, software (in source or object code), API
(application programming interface), database, program listings, data file printouts, and
customer information.
2. Confidentiality. Recipient shall treat as confidential all information which has been or may
hereafter be made available to it by observing the following requirements:
(a) Recipient shall not disclose any of the Information to any third party, person or corporation,
or the employees of such entities, without the prior written consent of Disclosing Party, and only
after such third party, person or corporation agrees in writing to all of the terms and conditions
of this Agreement. Recipient agrees to use its best efforts to promptly retrieve any of the
Information, and all copies thereof, transmitted to any third party when such third party no longer
requires access to such Information for the purposes of this Agreement;
(b) Recipient shall not publish, disclose, divulge, communicate or reveal any Information to any
of its officers, employees, representatives or agents unless they have a need to know the
information in order to perform their duties in connection with the Discloser, and are obligated
to treat the Information as confidential and use-restricted in the same manner and to the same
extent as provided herein;
(c) Recipient shall not disclose any Information to any parents, subsidiaries, divisions or
affiliates of Recipient, unless such disclosure is in furtherance of the purposes of this
Agreement and provided such parents, subsidiaries, divisions, or affiliates, agree to be bound
by all of the terms and conditions hereof as evidenced by a written agreement to that effect, a
copy of which shall be provided to Disclosing Party; and
(d) If Recipient receives a request or order under authority of any federal, state or local law or
regulation purporting to require disclosure of information to any third party or entity, Recipient
shall promptly notify Discloser of such request or order, but in no event less than forty-eight
(48) hours prior to the date such disclosure is required or requested to be made. After Discloser
has been notified of such a request or order and has been given a reasonable opportunity to
take appropriate action to defend against such request or order, Discloser shall provide written
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consent allowing Recipient to release the Information as required by the federal, state or local
law or regulation, provided such release is limited to those agencies and individuals required to
receive such information and the information is afforded any confidentiality protections
permitted under the law or regulation requiring such disclosure. Recipient shall use its best
efforts, in cooperation with and at the reasonable direction of Disclosing Party, to defend against
such disclosure.
3.Limited Use of Confidential Information. The recipient may use Information only (i) in
furtherance of the discussions with the Discloser, or (ii) as permitted by software Development
and User Agreement. Any other use by Recipient is strictly prohibited unless Recipient obtains
a prior written consent for such other use from an authorized representative of Disclosing Party.
4. Ownership of Confidential Information; Right to Disclose Confidential Information. All
Confidential Information is and shall remain, the property of the Discloser. Nothing herein shall
be construed as granting and conferring any rights by license or otherwise in the Confidential
Information except as expressly provided herein. Recipient acquires hereunder only a limited
right to use the Confidential Information solely for the purpose set forth in Section 3 above,
subject to the terms and conditions of this Agreement. Discloser represents and warrants to
Recipient that, at the time of disclosure, Discloser has the right to disclose Confidential
Information to Recipient and that such disclosure does not violate the rights of any third party.
5. The obligation of Confidentiality. Recipient agrees that, from receipt of Confidential
Information from Discloser, it shall use the same degree of care and means that it utilizes to
protect its own information of a similar nature, but in any event not less than reasonable care
and means, to prevent the unauthorized use or the discloser of such Confidential Information
to third parties. The Confidential Information may be disclosed only to employees, contractors
or consultants of Recipient with a "need to know" who are instructed and agree in writing not to
disclose the Confidential Information and not to use the Confidential Information for any
purpose, except as set forth herein. The recipient may not reproduce (without prior consent
from the Discloser), alter, decompile, disassemble, reverse engineer, or otherwise modify any
Confidential Information received hereunder and the mingling of the Confidential Information
with information of Recipient shall not affect the confidential nature or ownership of the same
as stated hereunder.
6. Exceptions to Obligation of Confidentiality. This Agreement shall impose no obligation of
confidentiality upon Recipient with respect to any portion of the Confidential Information
received hereunder which is: (a) now or hereafter, through no unauthorized act or failure to act
on Recipient's part, in the public domain; (b) known to Recipient without an obligation of
confidentiality at the time Recipient received the same from Discloser, as evidenced by written
records; (c) hereafter furnished to Recipient by a third party as a matter of right and without
restriction on disclosure; (d) furnished to others by the Discloser without restriction on
disclosure, or (e) independently developed by or for Recipient without reference to or use of
the Information. Nothing in this Agreement shall prevent Recipient from disclosing Confidential
Information to the extent Recipient is legally compelled to do so by any governmental
investigative or judicial agency pursuant to proceedings over which such agency has
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jurisdiction; provided, however, that prior to any such disclosure, Recipient shall assert the
confidential nature of the Confidential Information to the agency, immediately notify
Discloser in writing of the agency's order or request to disclose, and cooperate fully with the
Discloser in protecting against any such disclosure and/or obtaining a protective order
narrowing the scope of the compelled disclosure and protecting its confidentiality.
7. Return of Confidential Information. Upon written request from Discloser, Recipient shall
promptly return all copies of the Confidential Information, in whatever form or media, belonging
to Discloser or, at the direction of Discloser, destroy the same. Recipient shall certify in writing
to Discloser such return or destruction within ten (10) days after receipt of such written request.
8. Standard of Care. The standard of care for protecting Information shall be that degree of
care Recipient uses to prevent disclosure, publication or dissemination of its own proprietary or
confidential information, but in no event less than reasonable care.
9. No Warranty. Discloser makes no warranty, express or implied, as to any Confidential
Information that it may provide hereunder. This Agreement does not obligate either party to
enter into a business relationship or do any transaction with the other party.
10. No Obligation Regarding Purpose of Disclosure. The parties expressly agree that the
providing of Confidential Information hereunder and discussions held in connection with the
purpose set forth in Section 2 above shall not prevent either party from pursuing similar
discussions with third parties or obligate either party to continue discussions with the other,
enter into any agreement regarding such purpose, or to take, continue or forego any action
relating to such purpose.
11. Enforceability. If any provision of this Agreement is held invalid or unenforceable, the
remaining provisions shall continue to be valid and enforceable as though the invalid or
unenforceable provisions had not been included herein. In the event that a court declares that
any provision of this Agreement is too broad to be reasonable or enforceable, such provision
shall be enforced to the extent that such court deems the provision to be reasonable and
enforceable.
12. Equitable Remedies; Attorney's Fees. Recipient acknowledges, and hereby stipulates,
that the remedy at law for any breach by it of the terms of this Agreement shall be inadequate
and that the damages resulting from such breach are not readily susceptible to being measured
in monetary terms. Recipient expressly agrees that any injunction sought by Discloser for
breach hereof shall at minimum
(a) restrain Recipient from disclosing, in whole or in part, any Information;
(b) restrain Recipient from rendering any service to any person, firm, corporation, association
or other entity to which such information, in whole or in part, has been or may be disclosed; and
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(c) require Recipient to return to Discloser all Information pursuant to paragraph 13 below.
Nothing contained herein shall be construed as prohibiting Discloser from pursuing any other
remedies available to it for such breach or threatened breach, including the recovery of
damages from Recipient. In any action to enforce this Agreement, the prevailing party shall be
entitled to recover its reasonable attorney's fees, court costs, and related expenses from the
other party.
13. Return of Information. Recipient shall, upon the request of Disclosing Party, either
surrender to Disclosing Party, or certify as destroyed, any and all information (including any
copies, excerpts, derivatives or extrapolations thereof ) transmitted to it by Disclosing Party,
except that Recipient may retain in the confidential files of its legal counsel one copy of
Information solely for archival purposes and for confirming Recipient's compliance with the
terms of this Agreement.
14. No Other Relationship. This Agreement does not establish a joint venture, partnership or
any other type of business entity between the parties, and in no event shall the parties represent
to other persons that a joint venture, partnership or other types of business entity has been
formed unless such an entity has been formed pursuant to a written agreement duly executed
by both parties. No such agreement(s) between the parties shall be binding without
approval thereof by each party's Board of Directors or their respective appropriate corporate
officers having authority to approve such agreement(s).
15. Miscellaneous. This Agreement is intended as the complete and exclusive agreement as
to the protection of the Confidential Information disclosed hereunder and supersedes all prior
proposals, discussions, agreements, or commitments, whether oral or written, between the
parties regarding such subject matter. This Agreement may only be modified in writing by
authorized representatives of the parties.
16. In the event of a dispute arising and/or resulting from this Agreement, it is expressly
agreed that the venue thereof shall be in the proper courts of the City of General Santos. It is
also agreed on the mediation, arbitration, and other alternative modes of dispute resolution in
accordance with the Procedure of Arbitration Law of the Philippines, the Arbitration Rules of
the United Nations Commission on International Trade Law (UNCITRAL) or other similar
arbitration rules and regulations.
17.Assignment. Recipient does not have any right to assign this Agreement without the prior
written consent of Disclosing Party; provided however that either party may assign this
Agreement to a successor in interest to all or substantially all of the assets or business to which
this Agreement pertains, and provided, further, such assignee is not a direct competitor of the
non-assigning party.
18. Effective Date. The Agreement shall be effective as of the last party's signing and dating
of this Agreement ("Effective Date").
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IN WITNESS WHEROF, the parties have caused this Agreement to be signed by their duly
authorized representatives effective as of the
DISCLOSER:
RECIPIENT:
{recepient/developer}
{signatory for discloser}
SIGNATURE:
_________________________
SIGNATURE:
_________________________
PRINTED NAME:
______________________
PRINTED NAME:
______________________
DATE:
_______________________________
DATE:
_______________________________
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