Contractor NDA (Plug & Play)
This Confidentiality and Nondisclosure Agreement (the “Agreement”), is between
[COMPANY NAME], with offices located at [COMPANY ADDRESS] (“Company”), and
__________________________, an individual with a physical address of
____________________________________ (“Recipient”) (collectively, the “Parties” and
each, a “Party”).
WHEREAS, Company desires to assure the protection and preservation of the
confidentiality of information, which may be disclosed or made available to
Recipient for the sole, limited purpose of the performance of marketing and
advertising services on behalf of Company, or any of their customers or clients, by
Recipient (the “Purpose”); and
WHEREAS, the Parties intend by this Agreement, among other things, to limit the
manner and extent to which the Recipient may use or disclose the Company’s
Confidential Information (as defined below);
NOW, THEREFORE, the Parties agree as follows:
1. Confidential Information.
A. Except as set forth below, “Confidential Information” includes, but is not
limited to: all non-public, proprietary, or other information of Company or
relating to any customer or client of Company, including all information
surrounding marketing and advertising campaigns for clients and customers
and the results of those campaigns, in oral, visual, written, electronic, or other
tangible or intangible form, whether or not marked or designated as
“confidential,”; Company’s product information, business and marketing
plans, advertising campaigns, financial/pricing information, employee or
contractor information, strategies, software, techniques, drawings, designs,
processes, specifications, technical data, research and development,
inventions, intellectual property, know-how, and Personal Information (as
defined below) and is considered confidential whether or not it is marked as
such; and, all notes, analyses, summaries, and other materials prepared by
Recipient or any of its Representatives (as defined below) that contain, are
based on, or otherwise reflect, to any degree, any of the foregoing (“Notes”).
Confidential Information also includes the facts that the Parties are in
discussions regarding the Purpose and that Confidential Information has
been disclosed and any terms, conditions, or arrangements discussed.
B. Confidential Information does not include information:
* which at the time of disclosure is generally known in the Company’s trade
or public;
Contractor NDA (Plug & Play)
* Setup of social media platforms
* Which Recipient can show by written records was already in its possession
at the time of disclosure and not subject to an existing agreement of
confidence between the Parties;
* Which is received from a third party, other than a current or former agent
or representative of the Company without restriction and without breach of
this Agreement or any other agreement;
* Which is independently developed by Recipient as evidenced by its written
records; or,
* which is disclosed pursuant to a valid order of a court or regulatory agency
or other governmental body or any political subdivision thereof consistent
with Section 3.
C. “Personal Information” includes, but is not limited to: any information that
can be used to distinguish or trace an individual’s identity, including an
individual’s name, email address, social security number, date and place of
birth, mother‘s maiden name, biometric records, and any other information
that is linked or linkable to an individual, such as medical, educational,
financial, and employment information.
D. If, when disclosing other types of information, the Company affixes or
incorporates into any written information it discloses, a statement identifying
the information as the Company's Confidential Information, such as
"Confidential Information" or words of like meaning, the information is to be
considered Confidential Information. If the information is orally disclosed and
the Company indicates the confidential nature of the information at the time
of disclosure, the information is to be considered Confidential Information.
Notwithstanding the foregoing, Confidential Information shall be deemed to
include information that would reasonably be understood to be of a
confidential nature, given the circumstances surrounding the disclosure and
nature of the information.
2. Recipient’s Obligations of Confidentiality and Nondisclosure. In connection
with the Purpose, Company may disclose to Recipient, or Recipient may otherwise
receive access to, Confidential Information. Recipient agrees that it:
A. Shall use the Confidential Information solely for the Purpose;
B. Shall provide services outlined in the Purpose in return for disclosure of any
information outlined herein, and receive otherwise agreed upon
compensation for those services for agreeing to these confidentiality
obligations;
Contractor NDA (Plug & Play)
C. Subject to Section 3, shall not disclose or permit access to Confidential
Information other than to its employees or subcontractors, as expressly
permitted by Company (collectively, “Representatives”), who:
* need to know such Confidential Information for the Purpose;
* know of the existence and terms of this Agreement; and,
* are bound by written confidentiality/nondisclosure agreements no less
protective of the Confidential Information than the terms contained herein;
D. shall be expressly prohibited from using any Confidential Information relating
to clients or customers for purposes of a case study;
E. shall safeguard the Confidential Information from unauthorized use, access,
or disclosure using at least the degree of care it uses to protect its most
sensitive information and no less than a reasonable degree of care;
F. has in place appropriate technical, administrative, and physical controls to
protect the Confidential Information against accidental or unlawful
destruction or accidental loss, alteration, unauthorized disclosure or access,
and which provide a level of security appropriate to the risk represented by
the processing and the nature of the Confidential Information to be
protected.
G. shall promptly notify Company of any unauthorized use or disclosure of
Confidential Information and cooperate with Company to prevent further use
or disclosure; and,
H. shall be responsible for any breach of this Agreement caused by its
Representatives.
3. Legally Required Disclosure.
A. In the event the Recipient or any of its Representatives is requested or
required by law (including by request for information or documents through
legal proceedings, subpoena or other similar process) to disclose any
Confidential Information of the Company, Recipient shall provide the
Company with prompt written notice of any such request or requirement so
that the Company has the opportunity to seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this
Agreement, in the Company’s sole discretion.
B. If, in the absence of a protective order or the receipt of a waiver by the
Company, the Recipient is nonetheless legally compelled to disclose such
Confidential Information, and provided that the Recipient has cooperated
fully with the Company’s efforts to preserve the confidentiality of the
Contractor NDA (Plug & Play)
Confidential Information, including the Company’s efforts to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded to the Confidential Information, the Recipient,
without liability hereunder, shall only disclose that portion of the Confidential
Information that, in the written opinion of its legal counsel, Recipient is
required to disclose and only to the person(s) to whom such disclosure is
legally required.
4. Return or Destruction of Confidential Information. Upon termination of this
Agreement, and in any event, within five (5) days after being so requested by the
Company, Recipient shall, at Company’s option, either return to Company or destroy
all Confidential Information in its and its Representatives’ possession other than
Notes, and destroy all Notes, and certify in writing to Company the destruction of
such Confidential Information.
5. Disclaimer of Warranties. Company has no obligation under this Agreement to
(a) disclose any Confidential Information or (b) negotiate for, enter into, or otherwise
pursue the Purpose. Company provides all Confidential Information without any
representation or warranty, expressed or implied, as to the accuracy or
completeness thereof, and Company will have no liability to Recipient or any other
person relating to Recipient’s use of any of the Confidential Information or any errors
therein or omissions therefrom.
6. Ownership of Confidential Information. Company retains its entire right, title,
and interest in and to all Confidential Information, and no disclosure of Confidential
Information hereunder will be construed as a license, assignment, or other transfer
of any such right, title, and interest to Recipient, its Representatives, or any other
person.
7. No Solicitation. Recipient acknowledges and recognizes the highly competitive
nature of the business of Company and accordingly agree that: during Recipient’s
engagement with Company, and for one (1) year thereafter, Recipient shall not
directly or indirectly contact, communicate or work with, directly or indirectly, any
clients or customers of the Company;
hire or solicit, induce or influence, or attempt to induce or influence, or assist in the
hiring or solicitation of any person who, at any time during the six (6) month period
prior to such hiring or solicitation was an employee of Company, or otherwise entice
or encourage any such person either to leave Company’s employ or to provide
services to any Company competitor.
8. Term and Termination. The rights and obligations of the Parties under this
Agreement shall be effective on the date the Agreement is signed by the last Party
to sign it (the “Effective Date”), and shall expire twenty-five (25) years after the
Effective Date, unless terminated earlier by written notice from Company to the
Recipient; provided that with respect to Confidential Information that is a trade
Contractor NDA (Plug & Play)
secret under the laws of any jurisdiction, such rights and obligations will survive such
expiration until, if ever, such Confidential Information loses its trade secret
protection other than due to an act or omission of Recipient or its Representatives.
9. Remedies. Recipient acknowledges and agrees that any breach of this
Agreement will cause injury and irreparable harm to Company for which money
damages may be an inadequate remedy and that, in addition to remedies at law,
Company is entitled to equitable relief as a remedy for any such breach. In the event
of any breach or threatened breach of this Agreement, irrespective of any recovery of
monetary damages (which may be difficult or impossible to calculate), the Company
shall be entitled, without the requirement of posting a bond or other security, to
enforce this Agreement in accordance with the terms hereof by seeking immediate
equitable relief, including specific performance and/or a temporary, preliminary and
permanent injunction from any court of competent jurisdiction. The Company may
pursue both monetary damages and equitable relief concurrently or consecutively,
in any order, as to any breach or threatened breach of this Agreement, and the
pursuit of any one of such remedies at any time will not be deemed an election of
remedies or waiver of the right to pursue any other remedies, it being agreed that all
rights and remedies under this Agreement are cumulative and are in addition to and
not in substitution for any other rights and remedies available at law or in equity or
otherwise.
10. Reasonable Restrictions. Recipient acknowledges and agrees that the
covenants and restrictions contained in this Agreement are reasonable in scope,
area and duration and are necessary to protect the Company’s business, good will,
trade secrets, and near permanent, permanent and/or long-standing relationships
with its customers.
11. Indemnification. Recipient hereby indemnifies and agrees to defend and hold
harmless the Company, its partners, directors, officers, affiliates, employees and
agents, from and against any damages, losses, costs and expenses (including,
without limitation, attorneys’ fees) suffered by either Party, as a result of a breach of
this Agreement by Recipient or its Representatives, or suffered as a result of the
enforcement by the Company of this Agreement against Recipient. If the Company
shall prevail in any action at law or in equity to enforce the provisions of this
Agreement against Recipient, Recipient shall pay the Company’s costs and expenses
(including, without limitation, attorneys’ fees) incurred by the Company in enforcing
this Agreement against Recipient.
12. Miscellaneous Provisions.
A. Entirety of Agreement. This Agreement constitutes the entire agreement of
the Parties hereto concerning the subject matter hereof and supersedes any
prior oral or written agreements pertaining to the subject matter of this
Contractor NDA (Plug & Play)
Agreement. This Agreement may not be modified, changed or discharged in
whole or in part, except in a separate agreement in writing signed by
Recipient and the Company.
B. Severability. If any provision of this Agreement (including any sentence,
clause or word), or the application thereof to any person, place or
circumstance, shall be determined by a court of competent jurisdiction to be
invalid or unenforceable for any reason, (a) the remaining provisions of this
Agreement shall continue in full force and effect, unaffected by such
determination, (b) the court making such determination shall have the power
to, and the Parties hereby request the court to, modify such provision (by
providing for or adjusting the scope and/or duration of any rights or
restrictions or otherwise) to the minimum extent necessary so that such
provision becomes legal, valid and enforceable to the maximum extent
permitted by law and (c) such determination shall apply only in the
jurisdiction of such court and shall not alter, modify or affect such provision or
any other provision in any other jurisdiction.
C. No Export of Confidential Information. The Recipient represents and
warrants to Company that it will not export, directly or indirectly, Company’s
Confidential Information or any portion thereof in violation of any relevant law
or regulation.
D. Governing Law. This Agreement and all matters relating hereto are governed
by, and construed in accordance with, the laws of the United Kingdom,
without regard to the conflict of laws provisions of either. Any legal suit,
action, or proceeding relating to this Agreement must be instituted in the
courts located in the City of London. Each Party irrevocably submits to the
exclusive jurisdiction of such courts in any such suit, action, or proceeding.
[THIS MAY NEED TO BE ADJUSTED DEPENDING ON LOCATION AND CHOICE
OF VENUE]
E. Notices. All notices must be in writing and addressed to the relevant Party at
its address set out in the preamble (or to such other address such Party
specifies in accordance with this section) or by email, to such email address
such Party specifies in accordance with this section. All notices must be sent
by email (in which case such notices shall be effective upon delivery),
personally delivered (in which case such notices shall be effective upon
delivery) or sent prepaid by nationally recognized courier or certified or
registered mail, return receipt requested (in which case such notices shall be
effective five (5) business days after being sent).
F. Successors and Assigns. The Recipient may not assign or otherwise transfer
its rights, duties, or obligations under this Agreement to any other person or
entity, in whole or in part, without the prior written consent of Company. This
Agreement binds and inures to the benefit of the Parties and their permitted
successors and assigns.
Contractor NDA (Plug & Play)
G. Amendments and Modifications. No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be
binding upon either Party unless made in writing and signed by a duly
authorized representative of each Party.
H. Waiver. No waiver by either Party of any of the provisions hereof shall be
effective unless explicitly set forth in writing and signed by the Party so
waiving. No waiver by either Party shall operate or be construed as a waiver in
respect of any failure, breach, or default not expressly identified by such
written waiver, whether of a similar or different character, and whether
occurring before or after that waiver. No failure to exercise, or delay in
exercising, any right, remedy, power, or privilege arising from this Agreement
shall operate or be construed as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power, or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power, or privilege.
I. Limitation of Relationship. Nothing contained herein shall create a joint
venture between, or partnership among the Parties.
J. Headings. The headings in this Agreement are for reference only and shall not
affect the interpretation of the Agreement.
K. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall be deemed
to be one and the same agreement. A signed copy of this Agreement
delivered by facsimile, email, or other means of electronic transmission shall
be deemed to have the same legal effect as delivery of an original signed copy
of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as later of
the two dates below, that date being the Effective Date.
RECIPIENT COMPANY
By __________________________ By __________________________
Date ________________________ Date ________________________
