Download mutual confidentiality/non-disclosure agreement

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THIS AGREEMENT (this "Agreement") is made this ___ day of ______, 201 , between OctoScope, Inc., a
Massachusetts corporation, with a principal place of business located at 387 Berlin Road, Bolton, Massachusetts 01740
(“octoScope” or “a party”), and [
] (the "Company" or “a party”)).
The parties intend to engage in certain business discussions, during the course of which each party may disclose certain
proprietary or confidential business and technical information or data to the other in order to evaluate the possibility of
developing an ongoing relationship, and each party is willing to restrict its use of the proprietary or confidential information
of the other in order to protect its rights therein, on the terms set forth below.
In consideration of the above premises and the covenants hereinafter set forth, the parties agree as follows:
1. The following capitalized terms, when used herein, shall have the meanings provided below:
(a) "Confidential Information" of a party means confidential data and confidential information relating to the business
of such party (which does not rise to the status of a Trade Secret) which is or has been disclosed to the other
party or of which the other party became aware as a consequence of or through its business discussions or
relationship with the disclosing party and which has value to the disclosing party and is not generally known to its
competitors and which is designated by the disclosing party as confidential. Confidential Information shall not
include any data or information that (i) has been voluntarily disclosed to the public by the disclosing party, (ii) has
been independently developed and disclosed to the public by others, (iii) otherwise enters the public domain
through lawful means, or (iv) was already known by the receiving party at the time of disclosure by the disclosing
party, either because it was independently developed by the receiving party prior to such disclosure or was
lawfully and rightfully disclosed to the receiving party by another party.
(b) "Restricted Information" of a party means that party's Confidential Information and Trade Secrets.
(c) "Trade Secrets" of a party means information of such party, without regard to form, including, but not limited to,
technical or non-technical data, algorithms, formulas, patterns, compilations, programs, devices, methods,
techniques, drawings, processes, financial data, financial plans, product or service plans or lists of actual or
potential customers or suppliers which is not commonly known or available to the public and which information (i)
derives economic value, actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
2. Each party (a) shall receive and hold the other party's Restricted Information in trust and in strictest confidence;
(b) shall protect the other party's Restricted Information from disclosure and will in no event take any action causing
any such Restricted Information to lose its status as Restricted Information or fail to take the action necessary in
order to prevent any such Restricted Information from maintaining its character as Restricted Information; and
(c) shall not use, reproduce, distribute, disclose or otherwise disseminate any of the other party's Restricted
Information except in the furtherance of a business relationship between the parties.
3. Disclosures by a party of the other party's Restricted Information may be made only to employees, agents,
associates or independent contractors of the receiving party (a) who are directly involved in the business discussions
between the parties and have a specific need to know such information; and (b) whom the receiving party has
obligated under a written agreement to hold such Restricted Information in trust and in strictest confidence and
otherwise to comply with the terms of this Agreement. Each party agrees to diligently monitor each such employee,
agent or independent contractor and, upon request by the other party, promptly to furnish to the other party a certified
list of the receiving party's employees, agents, associates and independent contractors having had access to any of
the other party's Restricted Information.
4. Either party may disclose the Restricted Information if and to the extent that such disclosure is required by applicable
law or legal process, provided that the disclosing party provides the other party a reasonable opportunity to review
the disclosure before it is made and to interpose its own objection to the disclosure or to limit the disclosure by
means of a protective order or a request for confidential treatment.
5. The term of this Agreement shall commence on the date first above written and shall continue until terminated in
accordance with the provisions hereof. Either party may terminate this Agreement by providing at least thirty (30)
days written notice to the other.
6. The provisions in this Agreement restricting the disclosure and use of the other party's Confidential Information shall
survive for a period of two (2) years following termination of this Agreement.
7. The provisions in this Agreement restricting the disclosure and use of the other party's Trade Secrets shall survive
termination of this Agreement for so long as the respective information qualifies as a trade secret under applicable
law. Each party retains all rights and remedies afforded it under the patent and other intellectual property laws of the
United States and the States thereof, including without limitation any laws designed to protect proprietary or
confidential information.
8. This Agreement shall not be construed so as to grant to either party a license to utilize any of the other party's
Restricted Information. Other than in consideration of a potential transaction between the parties hereto, the
Restricted Information provided by each party to the other is not to be utilized by any person, party or entity, which
may become aware of such Restricted Information, directly or indirectly, by or through the disclosure contemplated
hereunder for any purpose whatsoever, unless the parties hereto enter into an agreement whereunder each of the
parties secures the written authorization of the other for the use of such Restricted Information.
9. Within ten (10) days following the receipt of a written request from the other party, each party agrees to deliver to the
requesting party all tangible materials containing or embodying the requesting party's Restricted Information, together
with a certificate executed by the returning party certifying that all such materials in its possession have been
10. If either party should breach or threaten to breach any of the provisions of this Agreement, the other party, in addition
to any other remedies it may have at law or in equity, will be entitled to a restraining order, injunction or other similar
remedy in order to specifically enforce the provisions of this Agreement. Each party specifically acknowledges that
money damages alone would be an inadequate remedy for the injuries and damage which would be suffered and
incurred by the other as a result of a breach of any of the provisions of this Agreement.
11. This Agreement and the rights and obligations of the parties under this Agreement may be assigned only upon the
prior written approval of the parties. The rights and obligations of the parties will inure to the benefit of, will be binding
upon and will be enforceable by the parties and their lawful successors and representatives.
12. No waiver or modification of this Agreement shall be valid or enforceable unless set forth in a written agreement duly
executed by the parties, and any such waiver or modification shall be effective only in that specific instance and for
the specific purpose for which it is given.
13. In the event that any provision of this Agreement or the application of such provision is held by a court of competent
jurisdiction, for any reason, to be invalid, illegal or unenforceable, then such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, and such provision shall be enforced to the maximum extent
permissible in accordance with the parties' intent.
14. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered,
shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
15. This Agreement is to be governed by the laws of the state of the complaining party, without regard to the conflicts of
law principles thereof.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed it as of the day and year first written above.
octoScope, Inc.
Fanny Mlinarsky