MUTUAL NON‑DISCLOSURE AGREEMENT (DEPARTMENT–SUPPLIER)
This Mutual Non‑Disclosure Agreement (Agreement) is entered into as of [Effective Date] (the Effective Date) by and between: (i) [Department Legal Name], a [entity type and jurisdiction] with a principal place of business at [address] (Department); and (ii) [Supplier Legal Name], a [entity type and jurisdiction] with a principal place of business at [address] (Supplier). Department and Supplier are each a Party and collectively the Parties.
RECITALS
A. The Parties anticipate exchanging certain confidential, proprietary, and/or trade secret information in connection with evaluating, negotiating, or performing a potential or existing supplier relationship, including procurement of goods and/or services (the Purpose).
B. The Parties desire to protect the confidentiality and restricted use of such information in accordance with the terms herein.
NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties agree as follows:
1. Definitions.
1.1 Confidential Information means any non‑public information disclosed, directly or indirectly, by or on behalf of a Party (Discloser) to the other Party (Recipient), in any form (including written, oral, visual, electronic, or sample), that (a) is designated as confidential or proprietary at the time of disclosure or within thirty (30) days thereafter (with a summary reasonably identifying the information), or (b) by its nature or the circumstances of disclosure a reasonable person would understand to be confidential. Confidential Information includes, without limitation: business plans; pricing, quotes, proposals, and RFP/RFQ responses; customer and supplier lists; contracts and terms; financial data; product roadmaps; specifications; designs; drawings; software (including source and object code), firmware, APIs, schemas, and algorithms; manufacturing methods; test data; quality records; performance metrics; security and architecture documentation; personal data; and the existence and content of discussions between the Parties.
1.2 Trade Secret means information that derives independent economic value from not being generally known and is subject to reasonable measures to maintain its secrecy, as defined by applicable law.
1.3 Personal Data means any information relating to an identified or identifiable natural person, to the extent regulated under applicable data protection or privacy laws.
1.4 Representatives means a Party’s and its Affiliates’ employees, officers, directors, agents, contractors, professional advisors, and potential financing sources who have a strict need to know for the Purpose and are bound by confidentiality obligations no less protective than those herein.
1.5 Purpose has the meaning set forth in Recital A.
2. Restrictions on Use and Disclosure.
2.1 Non‑Use. Recipient shall use Discloser’s Confidential Information solely for the Purpose and for no other purpose, including not for competitive, reverse engineering, or benchmarking purposes without express prior written consent.
2.2 Non‑Disclosure and Standard of Care. Recipient shall hold Confidential Information in strict confidence and shall not disclose it to any person other than its Representatives. Recipient shall protect Confidential Information using at least the degree of care it uses to protect its own like information, and in any event no less than a commercially reasonable standard of care.
2.3 Responsibility for Representatives. Recipient is responsible for any breach of this Agreement by its Representatives and shall ensure they comply with its terms.
2.4 No Reverse Engineering. Recipient shall not analyze, decompile, disassemble, or otherwise reverse engineer any samples, software, technology, or other tangible embodiments of Confidential Information, except to the limited extent expressly permitted by applicable law notwithstanding contractual restrictions (and then only after providing advance written notice to Discloser).
3. Exclusions. Confidential Information does not include information that Recipient can demonstrate by contemporaneous documentation: (a) is or becomes publicly available through no breach of this Agreement by Recipient or its Representatives; (b) was rightfully known to Recipient without restriction prior to disclosure by Discloser; (c) is independently developed by Recipient without use of or reference to Discloser’s Confidential Information; or (d) is rightfully obtained by Recipient from a third party without breach of any obligation of confidentiality. Any combination of features shall not be deemed public merely because individual features are public, unless the combination as a whole is public.
4. Permitted Disclosures; Compelled Disclosures.
4.1 Advisors and Potential Financing Sources. Recipient may disclose Confidential Information to its professional advisors and potential financing sources solely as necessary for the Purpose, provided they are bound by confidentiality obligations at least as protective as this Agreement.
4.2 Compelled Disclosure. If Recipient or its Representatives are required by law, regulation, stock exchange rule, or court/administrative order to disclose Confidential Information, Recipient may do so, provided that (to the extent legally permitted) Recipient gives Discloser prompt written notice to allow Discloser to seek a protective order or other appropriate remedy and discloses only that portion of Confidential Information that Recipient is legally required to disclose. Any information so disclosed shall remain Confidential Information for all other purposes.
5. Security and Data Protection.
5.1 Security Measures. Recipient shall implement and maintain administrative, technical, and physical safeguards appropriate to the sensitivity of the Confidential Information and consistent with industry standards to protect against unauthorized access, use, alteration, or disclosure.
5.2 Personal Data. To the extent Confidential Information includes Personal Data, Recipient shall comply with applicable data protection and privacy laws (including, as applicable, the EU/UK GDPR, and analogous federal, state, provincial, or national laws). If required by such laws, the Parties will execute additional data processing terms. Recipient shall promptly notify Discloser of any actual, confirmed unauthorized access to Confidential Information that constitutes a personal data breach under applicable law and cooperate in required notifications and mitigation.
6. Return and Destruction. Upon the earlier of Discloser’s written request or termination/expiration of the Purpose, Recipient shall promptly (a) cease all use of Confidential Information, and (b) return or destroy all Confidential Information, including copies and extracts, and certify such destruction in writing upon request. Recipient may retain (i) copies in routine backup media that are not readily accessible in the ordinary course of business and that will be destroyed in accordance with standard retention cycles, and (ii) one archival copy solely to comply with legal or regulatory obligations or for evidence of compliance with this Agreement, in each case subject to continued confidentiality and non‑use obligations.
7. Ownership; No License. All Confidential Information is and remains the exclusive property of Discloser. No license or other right, express or implied, is granted under any intellectual property right of Discloser by virtue of any disclosure, except the limited right to use Confidential Information for the Purpose in accordance with this Agreement.
8. Warranties and Disclaimers. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” DISCLOSER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF ACCURACY, COMPLETENESS, TITLE, NON‑INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. Nothing in this Agreement obligates either Party to proceed with any transaction or relationship.
9. Term; Survival.
9.1 Term. This Agreement commences on the Effective Date and continues for [two (2)/three (3)/five (5)] years unless earlier terminated by either Party upon thirty (30) days’ written notice.
9.2 Survival. Recipient’s obligations with respect to Confidential Information disclosed during the Term survive for a period of [five (5)] years from the last disclosure; provided, however, that with respect to any Trade Secret, such obligations survive for so long as the information continues to qualify as a trade secret under applicable law.
10. Equitable Relief; Remedies.
10.1 Irreparable Harm. Recipient acknowledges that unauthorized use or disclosure of Confidential Information may cause irreparable harm to Discloser for which monetary damages may be an inadequate remedy. Accordingly, in addition to all other remedies available at law or equity, Discloser is entitled to seek immediate injunctive or other equitable relief to prevent or curtail any actual or threatened breach, without the necessity of posting bond to the extent permitted by law.
10.2 Cumulative Remedies. All rights and remedies are cumulative and not exclusive of any other rights or remedies provided by law or equity.
11. Export Controls and Sanctions. Recipient shall not export, re‑export, or transfer any Confidential Information in violation of applicable export control, sanctions, or trade laws, including those administered by [e.g., the U.S. Department of Commerce (EAR) and U.S. Department of the Treasury (OFAC)] and analogous authorities. Recipient shall implement internal controls to ensure compliance and shall not provide access to restricted parties.
12. Anti‑Corruption Compliance. Each Party shall comply with applicable anti‑corruption and anti‑bribery laws in connection with the Purpose, including (as applicable) the U.S. Foreign Corrupt Practices Act and the UK Bribery Act, and shall not offer, promise, give, request, or accept anything of value to improperly influence any act or decision.
13. Publicity; Use of Name. No Party shall, without the other Party’s prior written consent, use the other Party’s name, logo, or trademarks, or refer to the other Party or this Agreement in any publicity, press release, marketing material, securities filing, or external communication, except as required by law or regulation (in which case Section 4.2 applies).
14. Independent Development. Nothing in this Agreement restricts either Party from independently developing products, services, or information that compete with or are similar to those disclosed by the other Party, provided no use is made of the other Party’s Confidential Information in doing so.
15. Assignment; Successors. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party, except to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of substantially all assets, provided that the assignee assumes all obligations herein. Any prohibited assignment is void. Subject to the foregoing, this Agreement binds and benefits the Parties and their permitted successors and assigns.
16. Order of Precedence. If the Parties enter into a definitive procurement or master services agreement that includes a confidentiality clause covering the same subject matter, then, unless expressly stated otherwise in such later agreement, the confidentiality clause of that later agreement shall supersede this Agreement to the extent of any conflict; otherwise, this Agreement remains in full force and effect.
17. Notices. All notices under this Agreement shall be in writing and shall be deemed given when (a) delivered personally, (b) sent by a reputable overnight courier with tracking, (c) sent by certified or registered mail (return receipt requested), or (d) sent by email with confirmation of transmission, in each case to the addresses below (or to such other address as a Party may designate by notice):
- If to Department: [name/title, address, email]
- If to Supplier: [name/title, address, email]
18. Governing Law; Dispute Resolution.
Option A (Courts): This Agreement is governed by the laws of [State/Country], excluding its conflicts of law rules. The Parties submit to the exclusive jurisdiction and venue of the courts located in [City, State/Country] for any dispute arising out of or relating to this Agreement.
Option B (Arbitration): Any dispute arising out of or relating to this Agreement shall be finally resolved by arbitration under the [ICC/LCIA/JAMS/AAA] rules by [one/three] arbitrator(s). The seat of arbitration shall be [City, Country]. The language shall be English. Judgment on the award may be entered in any court of competent jurisdiction. Interim injunctive relief may be sought in a court of competent jurisdiction where necessary to preserve rights or property pending arbitration.
19. Severability; Waiver. If any provision of this Agreement is held invalid or unenforceable, it will be modified to the minimum extent necessary to make it valid and enforceable, and the remaining provisions will remain in full force. No waiver of any breach or default is effective unless in writing and signed by the waiving Party, and no waiver constitutes a waiver of any other or subsequent breach.
20. Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous understandings regarding the same. Any amendment or modification must be in a written instrument executed by authorized representatives of both Parties.
21. Counterparts; Electronic Signatures. This Agreement may be executed in counterparts (including by PDF or electronic signature via a recognized e‑signature platform), each of which is deemed an original and all of which together constitute one and the same instrument.
22. No Agency; No Third‑Party Beneficiaries. Nothing herein creates any agency, partnership, joint venture, or employment relationship between the Parties. There are no third‑party beneficiaries to this Agreement.
23. U.S. Trade Secret Immunity Notice (if applicable). To the extent U.S. law applies and Recipient is an employer binding its employees or contractors to this Agreement, notice is hereby provided under 18 U.S.C. § 1833(b) that an individual shall not be held criminally or civilly liable under any federal or state trade secret law for disclosure of a trade secret that (i) is made in confidence to a federal, state, or local government official, or to an attorney, solely for the purpose of reporting or investigating a suspected legal violation; (ii) is made in a complaint or other document filed under seal in a lawsuit or other proceeding; or (iii) is made to an attorney in connection with a lawsuit for retaliation for reporting a suspected legal violation. Disclosures not made under seal may result in loss of immunity and remedies.
IN WITNESS WHEREOF, the Parties have executed this Mutual Non‑Disclosure Agreement as of the Effective Date.
[DEPARTMENT LEGAL NAME]
By: ______________________________
Name: ____________________________
Title: _____________________________
Date: _____________________________
[SUPPLIER LEGAL NAME]
By: ______________________________
Name: ____________________________
Title: _____________________________
Date: _____________________________
Drafting notes for implementation (to be deleted before execution):
- Select the governing law and forum in Section 18 to align with the organization’s standard procurement terms. For cross‑border matters, consider arbitration.
- Set the confidentiality survival period in Section 9.2 to an appropriate duration; preserve indefinite protection for trade secrets.
- If Personal Data will be exchanged, add a tailored data processing addendum consistent with applicable privacy laws and the nature of processing.
- If disclosures will be predominantly one‑way (e.g., only Department discloses), convert this to a unilateral NDA by narrowing the definition of Discloser/Recipient and applicable obligations.
