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Confidentiality Agreement

Confidentiality Agreement

This Confidentiality Agreement (the “Agreement”) is between                                               (“Contractor”) and                                        (“Company”).  It is recognized that it may be necessary or desirable to exchange confidential information between Contractor and Company for the purpose of                                                                                              ( the “Purpose”).

1.  Except as otherwise provided in this Agreement, all information disclosed by Contractor to the Company is Confidential Information and (1) shall remain the exclusive property of Contractor, (2) shall be used by the Company only for the Purpose set forth above, and (3) shall be protected by the Company.

2.  Confidential Information shall constitute all information concerning Contractor (whether prepared by Contractor, its representatives, advisors or others), whether furnished before or after the date of this Agreement and regardless of the manner in which it is furnished and includes, without limitation, any:

(i) performance, sales, financial, contractual, personnel, marketing information, ideas, technical data and concepts, and

(ii) formula, pattern, program, method, technique, process, design, business plan, business opportunity, customer or personnel list or financial statement

which derives independent economic value or commercial advantage, actual or potential, for not being generally known to the public or to the other persons who can obtain economic value from its disclosure or use and is subject to efforts that are reasonable under the circumstances to maintain its secrecy.  Confidential Information includes, but is not limited to, information disclosed in connection with this Agreement, and shall not include information that:

(a) is now or subsequently becomes generally available to the public  through no wrongful act or omission of the Company;

(b)  the Company can demonstrate to have had rightfully in its possession prior to disclosure to the Company by Contractor;

(c) is independently developed by the Company without use, directly or indirectly, of any Confidential Information; or

(d)  the Company rightfully obtains from a third party who has the right to transfer or disclose it.

3.  Except as specifically authorized by Contractor in writing, the Company shall not reproduce, use, distribute, disclose or otherwise disseminate the Confidential Information and shall not take any action causing, or fail to take any action necessary to prevent, any Confidential Information disclosed to the Company pursuant to this Agreement to lose its character as Confidential Information.  Upon expiration or termination of this Agreement or upon request by Contractor, the Company shall promptly deliver to Contractor all Confidential Information and all embodiments thereof then in its custody, control or possession and shall deliver within 5 working days after such termination or request a written statement to Contractor certifying to such action.

4.  The Company agrees that access to Confidential Information will be limited to those employees or other authorized representatives of the Company who:

(1) need to know such Confidential Information in connection with their work related to this Agreement; and

(2)  have signed agreements with the Company obligating them to maintain the confidentiality of Confidential Information disclosed to them.

The Company further agrees to inform such employees or authorized representatives of the confidential nature of Confidential Information and agrees to take all necessary steps to ensure that the terms of this Agreement are not violated by them.

5.  The Company’s duty to protect the Confidential Information pursuant to the Agreement extends both during the term of this Agreement (including any extension or renewal thereof) and after its expiration or termination.

6.  Any Confidential Information provided to the Company shall be used only in furtherance of the Purpose described in this Agreement, and shall be, upon request at any time, returned to the Contractor.  If the Company loses or makes unauthorized disclosure of Confidential Information it shall notify Contractor immediately and take all steps reasonable and necessary to retrieve the lost or improperly disclosed Confidential Information.

7.  The standard of care for protecting Confidential Information imposed on the Company will be that degree of care the Company uses to prevent disclosure, publication or dissemination of its own Confidential Information, but no less than reasonable care.

8.  In providing any information hereunder, Contractor makes no representations, either express or implied, as the information’s adequacy, sufficiency, or freedom from defect of any kind, including freedom from any patent infringement that may result from the use of such information nor shall either party incur any liability or obligation whatsoever by reason of such information, except as provided hereunder.

9.  This Agreement contains the entire agreement relative to the protection of information to be exchanged hereunder, and supersedes all prior to contemporaneous oral or written understandings or agreements regarding the issue.  This Agreement shall not be modified or amended, except in a written instrument executed by the parties.

10.  Nothing contained in this Agreement shall, by express grant, implication, estoppel or otherwise, create in either party any right, title, interest or license in or to the inventions, patents, technical data, computer software or software documentation of the other party.

11.  Nothing contained in this Agreement shall grant to either party the right to make commitments of any kind or on behalf of any other party without the prior written consent of that other party.

12.  The effective date of this Agreement shall be the date upon which the last signatory below executes this Agreement.

13.  This Agreement shall be governed and construed in accordance with the laws of _________                                           .

14.  This Agreement may not be assigned or otherwise transferred by either party in whole or in part without the express prior written consent of the other party, which consent shall not unreasonably be withheld.  This consent requirement shall not apply in the event either party shall change its corporate name or merge with another corporation.

15.  This Agreement shall benefit and be binding upon the successors and assignees of the parties hereto.




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