MUTUAL NON-DISCLOSURE AND NON-USE AGREEMENT
THIS MUTUAL NON-DISCLOSURE AND NON-USE AGREEMENT (this “Agreement”) is made effective as of the later of the dates set forth below the signatures of the parties hereto, by and between the undersigned person or entity and XXXX, LLC, a XXXX limited liability company. The parties hereto agree as follows:
1. Purpose. Each party hereto (a “Receiving Party”) understands that the other party hereto (a “Disclosing Party”) has disclosed or may disclose information concerning certain matters which will include certain Confidential Information owned or in the possession of Disclosing Party, including, but not limited to Disclosing Party’s ideas, inventions, products, and proposed businesses.
2. Definition.“Confidential Information” means any information relating to the Disclosing Party or its business (including, without limitation, names and expertise of employees and consultants, research, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics, computer programs, algorithms, manufacturing capability or processes, products, relationships with other business or research organizations, business plans and other technical, business, financial, market, customer and product development plans, forecasts, strategies, and information), to the extent previously, presently or subsequently disclosed to Receiving Party, whether communicated orally, in writing or otherwise. Confidential Information also includes any information Disclosing Party has received from a third party which Disclosing Party is obligated to treat as confidential or proprietary. Confidential Information does not include information, technical data, or know-how which (a) is at the time of disclosure in the possession of Receiving Party as shown by Receiving Party’s files and records immediately prior to the time of disclosure; (b) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of Receiving Party; (c) is approved by Disclosing Party in writing for release prior to such release; or (d) constitutes Feedback (as defined in Section 7).
2. 保密信息的定义. 所谓保密信息，是指在本协议签订之前、签订之时以及签订之后，信息披露方向信息接收方通过口头、书面或其他任何形式告知的、与信息披露方或其业务相关的任何信息，包括但不限于雇员或顾问的名字和专业技术，研究成果，技术诀窍，公式，工艺，思想，已经获得专利授权或尚未获得专利授权的发明创造，图表，计算机程序，算法，生产能力工艺，产品，与其他商业组织或研究机构的关系，业务发展计划和其它技术、商业经营、金融、市场、客户以及产品开发计划、预测、战略规划以及相关信息等。此外，本协议定义的保密信息也包括信息披露方从第三方获得的、负有保密义务的信息或财产。但保密信息不包括以下四个方面的信息、技术数据或技术诀窍： (a) 信息披露时已被信息接收方拥有的文件或相关记录表明在信息披露之前信息接收方已经享有或有权使用的信息； (b) 在信息披露前或后并非信息接收方的作为或不作为原因导致的、已为公众所知晓的信息； (c) 在信息披露前已为信息披露方书面同意披露的信息； (d)构成信息反馈 (具体定义参见本协议第7条).
3. Non-Use and Non-Disclosure of Confidential Information. All Confidential Information shall at all times remain the property of Disclosing Party. Receiving Party agrees not to use any Confidential Information disclosed to it by Disclosing Party for its own use or for any purpose except to carry out the specific purposes designated by Disclosing Party in its discussions with Receiving Party. Receiving Party will not disclose the Confidential Information of Disclosing Party to any other person or entity or to its employees or consultants except for those employees or consultants who are required to have the information in order to carry out the purposes designated by Disclosing Party. Receiving Party has had or will have all employees and consultants to whom Confidential Information of Receiving Party is disclosed sign a Non-Disclosure and Non-Use Agreement in content substantially similar to this Agreement. Receiving Party agrees it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Disclosing Party in order to prevent it from falling into the public domain or the possession of unauthorized persons, which measures shall consist of the degree of care Receiving Party utilizes to protect its own confidential information of a similar nature, but in no event less than a reasonable level of care.Receiving Party agrees to notify Disclosing Party in writing of any misuse or misappropriation of such Confidential Information of Disclosing Party that may come to its attention.
4. Non-Circumvention. Because of this Agreement, the parties hereto may learn from one another, or from principals, the names and telephone numbers of investors, borrowers, lenders, agents, brokers, banks, lending entities or individuals, individuals and/or trusts, developers, or buyers and sellers, (collectively, “Contacts”).The parties to this Agreement acknowledge, accept, covenant, and agree that the identities of the contacts will be recognized by the other party as exclusive and valuable Contacts of the introducing party and will remain so for the duration of this Agreement. The Receiving Party agrees to keep confidential the names of any Contacts introduced or revealed, and that their firm, company, associates, corporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees, or consultants will not contact, deal with, negotiate, or participate in any transactions with any of the Contacts without first entering a written agreement with the party who provided such contact unless that party gives prior written permission. Such confidentiality will include any names, addresses, telephone, telex, facsimile numbers, and/or other pertinent information disclosed or revealed to either party. The Receiving Party agrees not to disclose, reveal, or make use of any information during discussion or observation regarding methods, concepts, ideas, product/services, or proposed new products or services, nor to do business with any of the revealed Contacts without the written consent of the introducing party or parties. The obligations and restrictions imposed in this Section are limited, and the Receiving Party shall not be liable if the Receiving Party had a bona fide relationship, that can be demonstrated in good faith, with a Contact prior to entering into this Agreement.
4. 禁止规避：因为这个协议，双方能够互相从对方或负责人处获取投资人、借款人、放贷人、中介、经纪人、银行、放贷机构或个人、私人/托管机构、开发商、买方、卖方（统称联系人）的名字或电话号码。本协议各方一致同意：在本协议有效期内，前述联系人信息始终属于信息介绍者所专有的、有利用价值的信息。信息接收方同意对被介绍或被披露的联系人的名称保密，并保证，在未获得信息介绍者或提供者的书面同意的情况下，其所经营的企业、公司以及其合作伙伴、与其合作的股份公司、合资公司、合伙企业、分公司、下属公司、雇员、代理人、继承人、委派人、受托方、顾问等均不得与联系人进行接触、洽谈、协商或进行其他商业交易。保密内容包括名称、 地址、电话、电传、传真号码、 及所披露的其它相关信息。信息接收方同意在商谈或观望期间，不泄露、公开或使用任何信息，包括方法、概念、思想、产品/服务，推荐的新产品或服务；未取得介绍方书面许可之前，也不与任何所泄露的联系人做交易。但是，如果信息接收方能够诚意的证明在本协议建立之前已经与联系人建立了业务关系，本条所规定的义务和约束则不予适用。
5. Return of Materials. Any materials or documents which have been furnished by Disclosing Party to Receiving Party will be promptly returned, accompanied by all copies of such documentation upon the earliest of (a) a request by Disclosing Party, (b) termination of discussions between Disclosing Party and Receiving Party, or (c) completion of the services provided by Receiving Party to Disclosing Party.
5. 资料的返还：信息披露方所提供的任何资料或文件，包括复制件，在下面三种情况下都应立即返还：(a) 信息披露方提出了返还要求，(b) 本协议各方商谈中止，(c) 信息接收方完成了信息披露方的任务。
6. Patent or Copyright Infringement. Nothing in this Agreement is intended to grant any rights under any patent or copyright of Disclosing Party, nor shall this Agreement grant Receiving Party any rights in or to the Confidential Information, except the limited right to review such Confidential Information solely for the purpose contemplated by this Agreement.
7. Feedback. Receiving Party may from time to time provide suggestions, comments, or other feedback (“Feedback”) to Disclosing Party with respect to Confidential Information provided originally by Disclosing Party. Both parties agree all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate written agreement, create any confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to license terms that seek to require any Disclosing Party product, technology, service, or documentation incorporating or derived from such Feedback, or any Disclosing Party intellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise provided herein or in a separate subsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose, reproduce, license, or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
8. Term. The foregoing commitments in this Agreement shall survive any termination of discussions between the parties, and shall continue for a period of five years following the date of this Agreement.
9. Miscellaneous. This Agreement shall be binding upon and for the benefit of the undersigned parties and their successors and assigns, provided that Confidential Information may not be assigned without consent of Disclosing Party. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term thereof. Any amendment to this Agreement must be in writing and signed by an authorized representative of each party. Both parties agree they will not disclose the subject matter or terms of this Agreement or the discussions between the parties without the prior written consent of the other party. This Agreement may be signed in counterpart and by facsimile.
17. Interpretation. Only those terms and conditions appearing in English language will be used for the interpretation of this Agreement.
17. 真意 本协议以英文条款为准。
IN WITNESS WHEREOF, the parties have executed this Non-Disclosure and Non-Use Agreement effective as of the later of the dates set forth below the signatures of the parties hereto.
Date日期: , 2011 Date日期: , 2011