#@CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT - Sample Draft


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Sample Draft

CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT

This CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this "Agreement") effective as of _____________, 2002 is entered into by and between [insert name of the Disclosing Party], a [insert type of entity] ("Disclosing Party") and [insert name of Recipient], a [insert type of entity] ("Recipient").
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Recipient is in the business of [insert description of business, e.g. manufacturing templates for various devices].
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Disclosing Party developed and owns a medical apparatus (the "Apparatus") which contains patentable, proprietary and confidential material of Disclosing Party and trade secrets of Disclosing Party.
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Disclosing Party desires to have Recipient manufacture a template of the Apparatus and maintain the confidentiality of the patentable, proprietary and confidential material of Disclosing Party and trade secrets of Disclosing Party contained in the Apparatus which must be disclosed to the Recipient in connection with the manufacture of a template.
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Recipient desires to manufacture a template of the Apparatus and has agreed to maintain the confidentiality of the patentable, proprietary and confidential material of Disclosing Party and trade secrets of Disclosing Party pursuant to the terms and conditions of this Agreement.
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NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are acknowledged, and as a condition of such proprietary and/or confidential information and/or trade secrets being disclosed, Disclosing Party and the Recipient agree as follows:
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ARTICLE ONE.

1. Confidential Information.
   
   "Confidential Information" means any information relating to, referring to, incorporated or contained in the Apparatus, including, but not limited to, any information relating to the Apparatus, promotional plans for the Apparatus, business relationships of the Disclosing Party, equipment involved in the production of the Apparatus, provision of services related to the Apparatus, or any other information of Disclosing Party that derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use. Confidential Information does not include any information that: (a) was already legally known to Recipient prior to the time that it is disclosed to the Recipient by Disclosing Party after execution of this Agreement; (b) is in or has entered the public domain through no breach of this Agreement or other wrongful act of the Recipient; (c) has been rightfully received from a third party not under an obligation of confidentiality in connection with the Confidential Information or without a breach of this Agreement; (d) has been approved for release by the prior written authorization of Disclosing Party; or (e) is required to be produced in compliance with applicable law or a court order, as evidenced by the written opinion of legal counsel, provided that Disclosing Party is given reasonable notice of such law or order and an opportunity to attempt to seek a protective order or otherwise preclude or limit such production.

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2.
It is understood and agreed to by Disclosing Party and the Recipient that any exchange of Confidential Information under this Agreement shall be solely for the purpose of manufacturing a template of the Apparatus.

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3. Use and Disclosure of Confidential Information.

Recipient hereby agrees that it shall use the Confidential Information solely for the purpose set forth in Section 2 above and that it will cause its officers, directors, employees and agents to do the same. Recipient shall only disclose the Confidential Information to those officers, directors, employees and agents of Recipient that have a need to know the Confidential Information and are bound by a similar obligation of confidence to the Recipient. Except as expressly allowed herein, Recipient shall not reproduce any of the Confidential Information and shall not disclose all or any part of the Confidential Information in any form to any third party.


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4.
Unauthorized use or disclosure by the Recipient of Confidential Information will diminish the value to Disclosing Party of the Confidential Information and damage the relationships Disclosing Party has or is developing with potential investors in the Apparatus. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this Agreement and that the Disclosing Party shall be entitled to equitable relief to protect its interest herein, including but not limited to injunctive relief and specific performance, as well as monetary damages.
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5.
If any provision of this Agreement is declared illegal or invalid, such provision will be deemed severed, with the remaining provisions of this Agreement being deemed to remain in full force and effect.

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This Agreement shall be governed by and construed in accordance with the laws of the State of California, except to the extent preempted by the laws of the United States, without reference to the conflict of laws provisions of California law. Any action or proceeding arising out of or related to this Agreement or its termination shall be brought in a court located within the City and County of San Francisco, State of California, and that each of the parties hereby agree to be subject to service or process in California, and to submit to the jurisdiction and venue of such court.
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7.
This Agreement constitutes the complete and exclusive statement of the terms and conditions between the parties and supersedes any previous agreements pertaining to the subject matter hereof.

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This Agreement may be executed (by original or telecopied signature) in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Confidentiality and Nondisclosure Agreement as of the date first set forth above.

DISCLOSING PARTY:

I[insert name of Disclosing Party], a [insert type of entity]


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_______________________________ By: Title:

RECIPIENT:

[insert name of Recipient], a [insert type of entity]


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_______________________________ By: Title: