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CONFIDENTIAL INFORMATION
NON - DISCLOSURE
AGREEMENT
This Agreement effective as of _________, 200_ by and between CRELUX GmbH, having a
place of business at Am Klopferspitz 19a, 82152 Muenchen, Germany (hereinafter
"CRELUX" or "First Party"), and ________________________________________
(hereinafter "Second Party");
1. Background
Both parties intend to engage in discussions and negotiations concerning the
establishment of a business and/or research relationship between them. In the course of
such discussions and negotiations, it is anticipated that either party may disclose or
deliver to the other party certain of its confidential or proprietary materials or information
relating to
A. CRELUX's research and development programs, including but not limited to products,
strategies, projects and technologies, business, financial, patent, and scientific
information concerning its technologies, cellular assay systems, targets, compounds,
target validation strategies, drug validation strategies, drug discovery plans and
related technologies which is not generally known (hereinafter referred to as CRELUX
INFORMATION)
B. Second Party's research and development programs, including but not limited to
products, strategies, projects and technologies, business, financial, patent, and
scientific information concerning its technologies, cellular assay systems, targets,
compounds, target validation strategies, drug validation strategies, drug discovery
plans and related technologies which is not generally known (hereinafter referred to as
SECOND PARTY'S INFORMATION)
for the purpose of enabling the other party to evaluate the feasibility of such business or
research relationship. The parties have entered into this Agreement in order to assure the
confidentiality of such confidential or proprietary materials or information in accordance
with the terms of this Agreement. As used in this Agreement, the party disclosing
Proprietary Information (as defined below) is referred to as the "Disclosing Party"; the
party receiving such Proprietary Information is referred to as the "Receiving Party".
2. Proprietary Information
To the extent possible, as used in this Agreement, the term "Proprietary Information" shall
mean all confidential or proprietary material or information designated as such in writing
by the Disclosing Party, whether by letter or by the use of an appropriate proprietary
stamp or legend, prior to or at the time any such material or information is disclosed by the
Disclosing Party to the Receiving Party but the absence of such an indication shall not
nullify the confidential nature of the Proprietary Information. Notwithstanding the
foregoing, material or information which is orally or visually disclosed to the Receiving
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Party by the Disclosing Party, or is disclosed in writing without an appropriate letter,
proprietary stamp or legend, shall constitute Proprietary Information of the Disclosing
Party, if within thirty (30) days after such disclosure, the Disclosing Party delivers to the
Receiving Party a written document. In addition, Proprietary Information shall be deemed
to include any notes, analyses, compilations, studies, interpretations, memoranda or other
documents prepared by the Receiving Party which contain, reflect or are based upon, in
whole or in part, any Proprietary Information forwarded to the Receiving Party pursuant
hereto.
3. Disclosure of Proprietary Information
The Receiving Party shall disclose Proprietary Information received by it under this
Agreement only to those of its employees, advisors, agents, officers, consultants and
Affiliates who have a need to know such Proprietary Information in the course of the
performance of their duties and who shall be bound by confidentiality and non-use
commitments no less restrictive than those of this Agreement to protect the confidentiality
of such Proprietary Information in accordance with the terms of this agreement. For the
purpose of this Agreement, the term “Affiliates” shall mean any entity now or in the future
controlled by or under common control with the Recipient. For the purpose of this
Agreement, “control” means direct or indirect beneficial ownership of at least fifty percent
(50%) of the voting stock, or at least fifty percent (50%) interest in the income of the
Recipient or such other business. The Receiving Party shall use such Proprietary
Information only for the purpose for which it was disclosed and shall not use or exploit
such Proprietary Information for its own benefit or the benefit of another without the prior
written consent of the Disclosing Party.
4. Limitation on Obligations
The obligations of the Receiving Party specified in Section 3 above shall not apply, and
the Receiving Party shall have no further obligations, with respect to any Proprietary
Information to the extent that such Proprietary Information;
a) is generally known to the public at the time of disclosure or becomes generally known
through no wrongful act on the part of the Receiving Party;
b) is in the Receiving Party's possession at the time of disclosure other than as a result of
Receiving Party's breach of any legal obligation or a prior confidential disclosure by the
Disclosing Party;
c) becomes known to the Receiving Party through disclosure by sources other than the
Disclosing Party which have the legal right to disclose such Proprietary Information and
which are under no obligation of confidentiality (either direct or indirect) to the
Disclosing Party with respect to such Proprietary Information;
d) is independently developed by the Receiving Party without reference to or reliance
upon the Proprietary Information (as can be documented by written records); or
e) is required to be disclosed by the Receiving Party to comply with applicable laws or
governmental regulations, provided that the Receiving Party provides prior written
notice of such disclosure to the Disclosing Party and takes reasonable and lawful
actions to avoid and/or minimize the extent of such disclosure.
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5. Ownership of Proprietary Information
The Receiving Party agrees that the Disclosing Party is and shall remain the exclusive
owner of the Proprietary Information and all patent, copyright, trade secret, trademark and
other intellectual property rights therein. No license or conveyance of any such rights to
the Receiving Party is granted or implied under this Agreement. If any such rights are to
be granted to the Receiving Party, such grant shall be expressly set forth in a separate
written instrument.
6. Return of Documents
The Receiving Party agrees that the Disclosing Party is and shall remain the exclusive
owner of the Proprietary Information and all patent, copyright, trade secret, trademark and
other intellectual property rights therein. No license or conveyance of any such rights to
the Receiving Party is granted or implied under this Agreement. Nothing contained herein
shall be construed as granting to the Receiving Party any right to use any of the
Disclosing Party’s Confidential Information out of the scope of this Agreement. If any such
rights are to be granted to the Receiving Party, such grant shall be expressly set forth in a
separate written instrument.
The Receiving Party shall, upon the request of the Disclosing Party, return to the
Disclosing Party all drawings, documents, materials and other tangible manifestations of
the Proprietary Information received by the Receiving Party pursuant to this Agreement
(and all copies or reproductions thereof except one copy which may be retained for
archival purposes). Alternatively, upon written request of the Disclosing Party, the
Receiving Party shall destroy all Proprietary Information received by Receiving Party from
the Disclosing Party (and all copies and reproductions thereof except one copy which may
be retained solely for archival purposes).
7. Standard of Care
The Receiving Party shall protect the Proprietary Information received, acting in
accordance with prudent commercial practice and having utmost regard to the sensitivity
of the Proprietary Information, and will store and handle the Proprietary Information in
such way as to prevent unauthorized disclosure.
8. Miscellaneous
a) This Agreement sets forth the entire agreement, and supersedes all prior agreements,
written or oral, between both parties relating to the subject matter of this Agreement.
This Agreement may not be, changed or discharged, in whole or in part, except by an
agreement in writing signed by both parties.
b) This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, successors, and assigns.
c) If any of the provisions of this Agreement shall become or be held invalid or
unenforceable all other provisions hereof shall remain in full force and effect. The
invalid or unenforceable provision shall be deemed to be automatically amended and
replaced by a valid and enforceable provision which accomplishes as far as possible
the purpose and the intent of the invalid or unenforceable provision.
d) This Agreement shall be construed and interpreted in accordance with the laws of
Germany, without giving effect to conflict of laws provisions. Any disputes arising out or
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in connection with this agreement or the performance thereof shall be submitted to the
Munich court, which shall have exclusive jurisdiction.
e) This Agreement, and the obligations of the parties hereunder, shall remain in effect for
a period of 10 (ten) years from the date of dispatch of each individual Proprietary
Information, except the obligation of the Receiving Party to return Proprietary
Information to the Disclosing Party, which shall survive until fulfilled.
f) The provisions of this Agreement are necessary for the protection of the business and
goodwill of the parties and are considered by the parties to be reasonable for such
purpose. The Receiving Party agrees that any breach of this Agreement will cause the
Disclosing Party substantial and irreparable harm and therefore, in the event of any
such breach, in addition to other remedies which may be available, the Disclosing Party
shall have the right to seek specific performance and other injunctive and equitable
relief.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first above written.
CRELUX GmbH
THE RECEIVER
München,
_________________________
Place/Date
_________________________
_________________________
Name
_________________________
_________________________
Position
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