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© 2023 ERIN AUSTIN LAW PLLC.

NOT LEGAL ADVICE. PROVIDED FOR INFORMATIONAL PURPOSES ONLY 1

MUTUAL CONFIDENTIALITY AGREEMENT

This MUTUAL CONFIDENTIALITY AGREEMENT (this “Agreement”) is effective as of _____________,

20__ (the “Effective Date”), by and between [YOUR FULL LEGAL NAME], whose principal place of

business is located at ________________________________, and [OTHER PARTY’S FULL LEGAL NAME],

whose principal place of business is located at _________________________.

The parties agree as follows

1. Purpose. The parties wish to explore the following business opportunity of mutual interest:

______________________________________ (the “Opportunity”), and in connection with the

Opportunity, each party (the “Disclosing Party”) may have already disclosed and may further disclose

to the other party (the “Recipient”) confidential technical and business information that the Disclosing

Party desires the Recipient to treat as confidential.

COMMENTS:

 Every NDA should clearly define the specific purpose for sharing the confidential

information, and the NDA should restrict such use for that specific purpose only.

For example, if the parties are exploring opportunities to collaborate on a project

and enter into an agreement for that purpose, then the NDA should restrict the use

of any confidential information such purposes only.

 Note that this covers confidential information that may have been disclosed prior

to entering the agreement, such as during a phone call or in an RFP.

2. Definition. “Confidential Information” means (a) any information disclosed by the Disclosing Party

to the Recipient, either directly or indirectly, in writing, orally or by inspection of tangible objects,

including, without limitation, algorithms, business plans, concepts, computer programs, customer

data, customer lists, customer names, design documents, drawings, engineering information,

employee information, financial analysis, financial information, forecasts, formulas, hardware

configuration information, know how, ideas, improvements, inventions, market information,

marketing plans, models, processes, products, product plans, research, specifications, software,

source code, supplier data, supplier lists, trade secrets or any other information that the Disclosing

Party identifies as confidential at the time of disclosure or identifies as confidential in writing within

a reasonable time after the initial disclosure; (b) any information otherwise obtained, directly or

indirectly, by the Recipient through inspection, review or analysis of the above; and (c) information

of a third party that is in the possession of one of the parties under a confidentiality obligation and

is disclosed to the other party under this Agreement.

COMMENTS:

 A critical purpose of an NDA is to avoid confusion over what the parties consider

to be confidential. The burden should be on the disclosing party to identify what

is confidential through written notices or summaries. Marking information as

confidential provides a degree of certainty with respect to the receiving party's

obligations under the agreement. On the other hand, the disclosing party does not

want to lose protection of confidential information by inadvertent omission.

 Confidential Information should also include all notes, analyses, materials, and

summaries prepared by the receiving party that are based upon such confidential

information.

 Ultimately, the NDA’s scope of protection will depend on each party’s relative

negotiating power and which party is the primary disclosing party.

SAMPLE