fiverun - mutual nda template

8/2/2019 Fiverun - Mutual NDA Template

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MUTUAL NONDISCLOSURE AGREEMENT

THIS MUTUAL NONDISCLOSURE AGREEMENT (this Agreement) is made this _______day of ___________, 200_, by and between Fiverun Inc., a Delaware corporation having a place ofbusiness at _________________ (Fiverun), and __________________, a

__________________________ [corporation] with a business address at 524 Union St Ste 47 San

Francisco, California 94133 (Company).

Statement of Purpose

In connection with the evaluation and analysis of a possible business relationship and contractualagreement between Fiverun and Company regarding _____________________ ("Transaction"), eachparty will disclose to the other certain Proprietary Information" (as defined below). When either partydiscloses such Proprietary Information, such party is referred to in this Agreement as a DisclosingParty, and when it receives Proprietary Information, such party is referred to as a Receiving Party.

In consideration of furnishing the other party with Proprietary Information, the mutual promisesand covenants contained herein and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, Fiverun and Company each agree as follows:

1. Definition of Proprietary Information. As used in this Agreement, the term ProprietaryInformation shall mean all communications, documents and other information, whether in written, oralor other form, which any Disclosing Party furnishes, causes to be furnished or otherwise discloses toa Receiving Party, or which a Receiving Party otherwise learns in connection with the evaluation andperformance of the Transaction[, and which is marked or identified at the time of disclosure asthe Proprietary Information of the Disclosing Party. Information disclosed verbally that is tobe considered Proprietary Information must be identified as such at the time of disclosure andconfirmed in writing by the Disclosing Party within thirty (30) days after such disclosure].Notwithstanding the foregoing, Proprietary Information shall not include information that the ReceivingParty can demonstrate: (a) at the time of disclosure is in the public domain or is otherwise available to

the Receiving Party other than on a confidential basis; (b) after disclosure, becomes a part of thepublic domain by publication or otherwise through no fault of the Receiving Party; (c) was disclosed tothe Receiving Party by a third party not under an obligation of confidentiality to the Disclosing Party; or(d) is or has been developed by the Receiving Party (as evidenced by the Receiving Partys writtenrecords) independently of the disclosures by the Disclosing Party.

2. Treatment of Proprietary Information.

a. The parties acknowledge that each party considers the Proprietary Information itdiscloses to be valuable, confidential and a trade secret. Each party agrees to keep secret andconfidential the Proprietary Information of the other party, and further agrees to use such informationsolely for the purpose of evaluating and performing the Transaction. Except as authorized by this

Agreement, the Receiving Party shall not use any Proprietary Information for the Receiving Partysown or any third party's benefit, without the prior written approval of an authorized representative ofthe Disclosing Party.

b. Each party further agrees that the Proprietary Information shall not be disclosed to anythird party, except that a Receiving Party may disclose the Proprietary Information or portions thereofto those of its directors, officers, employees, representatives and agents (collectively, theRepresentatives) who need to know such information for the purpose of evaluating a Transactionbetween Fiverun and Company. Prior to disclosing any Proprietary Information to anyRepresentative, the Receiving Party will inform such Representative of the confidential nature of the


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Proprietary Information and will require such Representative to agree to be bound by confidentialityterms substantially equivalent to the terms of this Agreement. Notwithstanding any provision in this

Agreement, a Receiving Party may disclose Proprietary Information or portions thereof to the extentrequired to comply with an order issued by a court or governmental agency of competent jurisdiction;provided, however, that prior to disclosing any Proprietary Information to such court or governmentalagency, the Receiving Party shall give the Disclosing Party reasonable prior written notice to permitthe Disclosing Party to challenge such order.

c. Neither party shall reverse engineer, decompile or disassemble any software of theother party.

3. Ownership of Proprietary Information. Fiverun and Company each agree andacknowledge that all Proprietary Information of a Disclosing Party hereunder shall remain the soleproperty of the Disclosing Party to whom it relates. Nothing in this Agreement shall be deemed alicense to the Receiving Party to use the intellectual property of the Disclosing Party.

4. Return of Proprietary Information. At the request of a Disclosing Party, the Receiving Partywill promptly return to the Disclosing Party all of the Disclosing Party's Proprietary Information,together with all copies thereof and all notes, drawings, abstracts and other information relating to the

Proprietary Information prepared by the Receiving Party or any of its Representatives, regardless ofthe medium in which such information is stored, whether or not then in the possession of theReceiving Party or in the possession of any of the Representatives. Further, upon request of aDisclosing Party, the Receiving Party will provide the Disclosing Party with a statement, signed by aduly authorized representative of the Receiving Party, verifying that the Receiving Party has compliedwith the terms of this Agreement.

5. No Representations. Fiverun and Company understand and acknowledge that neitherparty is making, nor will either party make at the time of delivery of the Proprietary Information, anyrepresentation or warranty, express or implied, as to the accuracy or completeness of the ProprietaryInformation, and neither Fiverun nor Company, nor any of their respective officers, directors,employees, stockholders, owners, affiliates, agents or representatives will have any liability to the

other party or any other person resulting from the use of the Proprietary Information.

6. Survival of Confidentiality Obligation. In the event the discussions between Fiverun andCompany do not result in a Transaction or other business arrangement between Fiverun andCompany, or if such a Transaction or arrangement is negotiated but not consummated, the covenantscontained herein shall survive the termination of the discussions and negotiations respecting suchTransaction or arrangement as discussed below.

7. Term. This agreement shall terminate three (3) years from the date stated above, exceptthat the obligations of confidentiality and non-use with respect to Proprietary Information disclosed bythe Disclosing Party to the Receiving Party prior to such termination shall survive the termination ofthis Agreement.

8. Miscellaneous.

a. Fiverun and Company agree that money damages will not be an adequate remedy forany breach of this Agreement and that a Disclosing Party shall be entitled to equitable relief, includingan injunction and specific performance, in the event of any breach or threatened breach of this

Agreement, in addition to any other remedies available to the Disclosing Party at law or in equity.Fiverun and Company each waive the defense that an adequate remedy at law exists for any breachor threatened breach of this Agreement.


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b. Failure to insist upon strict compliance with any provision of this Agreement shall not

be deemed waiver of such provision or any other provision hereof.

c. This Agreement shall be binding upon and shall inure to the benefit of the parties andtheir respective successors and permitted assigns; provided, however, that this Agreement may notbe assigned by either party without the prior written consent of the other party.

d. This Agreement constitutes the entire Agreement between the parties and supersedesall previous agreements, negotiations and commitments between the parties related to the subjectmatter, and shall not be changed or modified in any manner, except by mutual written consent signedby duly authorized representatives of each of the parties.

e. This Agreement will be governed by, construed and enforced in accordance with thelaws of the State of California, without regard to the conflicts of law rules of such State.

f. If any provision of this Agreement shall be held by a court of competent jurisdiction tobe illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.

g. The execution of this Agreement shall not create any agency, partnership, joint

venture, association or any other relationship between the parties other than as independentcontracting parties.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date firstabove written.

FIVERUN, INC. ________________________

By: By:

Name: Name:

Title: Title:

Date: Date:

fiverun - mutual nda template

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