MUTUAL NON-DISCLOSURE AGREEMENT
This AGREEMENT (“Agreement”), made this ____ day of _______, 20__, by and
between Reliance Communications, LLC. (the “First Party”) with offices at 555 Wireless Blvd.
Hauppauge, NY 11788, and ________________________ (the “Second Party”) with offices at
______________________________________. First Party on the one hand, and the Second
Party, on the other hand, are each sometimes referred to as (i) the “Disclosing Party” when the
context connotes the party disclosing the Confidential Information (as that term is defined
below), or (ii) the “Receiving Party” when the context connotes the party receiving the
Confidential Information (as that term is defined below).
WHEREAS, First Party and the Second Party contemplate discussions and analyses
concerning a potential business venture or opportunity; and
WHEREAS, each party has proprietary and Confidential Information (as that term is
defined below); and
WHEREAS, in order to facilitate such discussions and analyses, Confidential
Information pertaining to the financial condition or operations of each party may be disclosed
between the parties orally or in writing; and
WHEREAS, each party will disclose “Confidential Information” (as that term is defined
below) and agree to hold any received Confidential Information in confidence.
NOW, THEREFORE, in consideration of the disclosure of Confidential information by
the Disclosing Party, the mutual promises herein contained and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1.
This Agreement will confirm the understanding between the parties concerning
the mutual obligations of confidentiality with respect to Confidential Information furnished for
the purpose of this Agreement.
2.
Subject to the provisions of paragraph 4 hereof:
(a)
Confidential Information, for purposes of this Agreement, is all
information given by the Disclosing Party to the Receiving Party. Without limiting the
generality of the foregoing, Confidential Information includes, but is not limited to, any financial
matters, financial statements, banking or other financial information, business, commercial,
trade-secret or technology-related information, including, but not limited to, information about
the Disclosing Party’s products, services or processes, any technical, financial, economic or
commercial information and/or data, customer lists (potential or actual), other customer-related
information, contact information, pricing lists, trade secrets, license agreements, company plans,
product or supplier-related information, market intelligence and marketing and other business
plans or strategies disclosed hereunder, and any other information regarding its operations,
2688291.1 – RELIANCE JULY 2013 UPDATED NDA
property, business or affairs. Confidential Information includes, but is not limited to,
information received from a third party, which such party is required to keep confidential.
Confidential Information includes, but is not limited to, Confidential Information transmitted on
any kind of media, including, but not limited to, electronic, written, magnetic, or orally.
Confidential Information may include technical data, graphs, formulae, drawings, specifications,
norms, manuals, software, data, trade secrets, documents, or business plans; and
(b)
To the extent the Disclosing Party discloses, or provides for the disclosure
of Confidential Information of a third party, that third party shall be a third party beneficiary
with respect to the confidentiality provisions of this Agreement and shall be entitled to enforce
such provisions directly against the Receiving Party as the third party’s interest may warrant.
The Receiving Party agrees, without charge, to sign such further agreements or
acknowledgments as the Disclosing Party may request in order to evidence more clearly which
parts of the Confidential Information may derive from such third parties and how such
Confidential Information is required to be protected hereunder.
3.
The Confidential Information will be kept confidential, will be used solely in
connection with the evaluation of a potential business venture or opportunity between the parties
hereto or their affiliates and, except as contemplated hereby, will not, without the prior written
consent of the Disclosing Party be used or disclosed, directly or indirectly, in any manner
whatsoever, in whole or in part at this time or any time in the future. Moreover, each party
agrees to transmit the Confidential Information only to those directors, officers, employees,
agents, attorneys, advisors, affiliates or representatives (collectively the “Representatives”) who,
in its reasonable opinion, need to know the Confidential Information for the purposes of
evaluating the potential business venture and who are informed of the confidential nature of the
Confidential Information. Each party agrees to monitor the activities of its Representatives in
respect of the Confidential Information for the purpose of ensuring compliance with this
Agreement.
4.
The obligations imposed upon either party herein shall not apply to information:
a.
which is publicly available prior to the date hereof; or
b.
which hereafter becomes available to the public through no wrongful act
of the Receiving Party; or
c.
which is already in the possession of the Receiving Party and not subject
to an existing agreement of confidence between the parties; or
d.
which is received from a third party without restriction and without breach
of this Agreement; or
e.
which is independently developed by the Receiving Party; or
f.
which is disclosed pursuant to an order of a court of competent
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jurisdiction, or an order, requirement or request of a government agency or
pursuant to a subpoena. In the event the Receiving Party or any of its
Representatives have been requested or are required (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process) to disclose any Information, the
Receiving Party will promptly notify the Disclosing Party of such
request(s) so that the Disclosing Party may seek an appropriate protective
order or waive the Receiving Party’s compliance with the provision of the
Agreement. The Receiving Party warrants that it will cooperate fully with
the Disclosing Party in seeking any protective order. If, in the absence of
a protective order or the receipt of a waiver hereunder, the Receiving Party
is, nonetheless, in the reasonable opinion of its counsel, compelled to
disclose Confidential Information or else stand liable for contempt or
suffer other censure or penalty, it may disclose such Confidential
Information pursuant to such request or requirement without liability
hereunder; or
g.
which is required to be disclosed by law, rule or regulation, including but
not limited to federal and state or other jurisdictions’ securities laws; or
h.
which is approved for release by the Disclosing Party without restriction.
5.
Unless and until a definitive written agreement between the parties hereto with
respect to a particular business transaction between them has been executed and delivered,
neither party will be under any obligation of any kind whatsoever with respect to such a
transaction by virtue of this or any written or oral expression concerning such a transaction by
either party or any of their respective Representatives, except, in the case of this Agreement, for
the matters specifically agreed to herein.
6.
Each party reserves the right, in its sole discretion, to reject any and all proposals
(or requests to make one or more proposals) made by the other party or its Representatives with
regard to a transaction between the parties and to terminate discussions and negotiations with, or
directly or indirectly involving, the other party at any time.
7.
Each party acknowledges and agrees that, in the event of any breach or threatened
breach of any provision of this Agreement, the Disclosing Party will be without an adequate
remedy at law and, accordingly, shall be entitled to enforce such provisions by temporary or
permanent injunctive or mandatory relief obtained in an action or proceeding instituted in any
court of competent jurisdiction without the necessity of proving damages and without prejudice
to any other rights or remedies which it may have at law or in equity.
8.
All Confidential Information furnished by one party to the other is considered
loaned for use solely in connection with the proposed business venture or opportunity and shall
be returned by the Receiving Party to the Disclosing Party upon request by the Disclosing Party.
Upon the request of the Disclosing Party, the Receiving Party shall certify that it has destroyed
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or returned all copies of the Confidential Information in its possession.
9.
Nothing in this Agreement is intended to grant any rights under a patent,
trademark or copyright of either party, nor shall this Agreement grant either party any rights in or
to the other party’s Confidential Information, except the limited right to review such Confidential
Information for the sole purpose of evaluating the proposed business venture or opportunity.
Each party agrees not to subject the other party’s product(s) to a component analysis or reverse
engineering.
10.
The Disclosing Party warrants that it has the right to disclose its Confidential
Information to the Receiving Party. Otherwise, all Confidential Information is provided “as is”
and without any warranty, express, implied or otherwise, regarding its use, results, accuracy or
performance.
11.
This Agreement shall be construed and interpreted in accordance with the laws of
the State of New York, applicable to agreements performed solely within the State of New York.
12.
Each party hereby irrevocably consents and submits to the jurisdiction of all
federal and state courts within the State of New York in connection with any matter relating to
this Agreement.
13.
This Agreement may be amended only by a written instrument executed by each
party or, in the case of a waiver, by the Disclosing Party. The failure of the Disclosing Party at
any time or times to require performance of any provision hereof shall in no manner affect its
right at a later time to enforce such provision or any other provision. No waiver by the
Disclosing Party of the breach of any term contained herein, whether by conduct or otherwise, in
any one or more instances, shall be deemed to be or construed as a further or continuing waiver
of any such breach or the breach of any other term of this Agreement.
14.
The relationship of the parties hereunder shall at all times be that of independent
contractors. Under no circumstances shall the relationship be deemed that of master and servant,
principal and agent, employer and employee, partners or joint venturers.
15.
This Agreement sets forth the entire agreement and understanding of the parties in
respect to the subject matter hereof and supersedes all prior and contemporaneous agreements,
arrangements and understandings relating thereto.
16.
Any notices sent to the parties pursuant to the terms of this Agreement shall be
hand delivered, transmitted by telecopier or mailed by certified mail, return receipt requested, or
overnight courier to the address set forth hereinabove.
17.
This Agreement may be executed in counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument. Facsimile or
other electronic images of the signatures of the Parties herein shall be deemed originals.
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18.
This Agreement shall be binding upon and shall inure to the benefit of the
respective successors and assigns of the parties hereto. This Agreement may not be assigned by
either party without the prior written consent of the other party.
RELIANCE COMMUNICATIONS, LLC
By: ________________________________
Name:
Title
____________________________________
By: _________________________________
Name:
Title:
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