At Fumax, we understand it is crucial to keep customer design confidential. Fumax makes sure employees will not disclose any design documents to any third parties unless a written approval from the customers.
In the beginning of the cooperation, we will sign NDA for every customer. A typical NDA sample as below:
MUTUAL NON DISCLOSURE AGREEMENT
This Mutual Non‑Disclosure Agreement (the “Agreement”) is made and entered into this DDMMYY, by and between:
Fumax Technology Co., Ltd. a CHINA Company/Corporation (“XXX”), with its principal place of business located at 27-05#, East block, YiHai square, Chuangye Road, Nanshan, Shenzhen, China 518054,
Customer Company, with its principal place of business located at 1609 av.
hereinafter referred under this Agreement to as ‘Party’ or ‘Parties’. The validity of this document is 5 years from the date of signature.
WHEREAS, the Parties intend to explore mutual business opportunities and, in connection therewith, may disclose to each other confidential or proprietary information.
NOW, THEREFORE, the Parties hereto agree as follows:
ARTICLE I – PROPRIETARY INFORMATION
For purposes of this Agreement, “Proprietary Information” shall mean written, documentary or oral information of any kind disclosed by either Party to the other and marked by the disclosing Party with a legend, stamp, label or other marking indicating its proprietary or confidential nature, including, but not limited to, (a) information of a business, planning, marketing or technical nature, (b) models, tools, hardware and software, and (c) any documents, reports, memoranda, notes, files or analyses prepared by or on behalf of the receiving Party that contain, summarize or are based upon any of the foregoing. “Proprietary Information” shall not include information that:
(a) is publicly available prior to the date of this Agreement;
(b) becomes publicly available after the date of this Agreement through no wrongful act of the receiving Party;
(c) is furnished to others by the disclosing party without similar restrictions on their right to use or disclose;
(d) is rightfully known by the receiving Party without any proprietary restrictions at the time of receipt of such information from the disclosing Party or becomes rightfully known to the receiving Party without proprietary restrictions from a source other than the disclosing Party;
(e) is independently developed by the receiving Party by persons who did not have access, directly or indirectly, to the Proprietary Information; or
(f) is obligated to be produced under order of a court of competent jurisdiction or a valid administrative or governmental subpoena, provided that the receiving Party promptly notifies the disclosing Party of such event so that the disclosing Party may seek an appropriate protective order.
For the purpose of the foregoing exceptions, disclosures which are specific, e.g. as to engineering and design practices and techniques, products, software, services, operating parameters, etc. shall not be deemed to be within the foregoing exceptions merely because they are embraced by general disclosures which are in the public domain or in the possession of the Recipient. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features thereof are in the public domain or in the possession of the Recipient, but only if the combination itself and its principle of operation are in the public domain or in the possession of the receiving Party.
ARTICLE II – CONFIDENTIALITY
(a) The receiving Party shall protect all of the disclosing Party’s Proprietary Information as confidential and proprietary information and, except with the prior written consent of the disclosing Party or as otherwise specifically provided herein, shall not disclose, copy or distribute such Proprietary Information to any other individual, corporation or entity for a period of five (5) years from the date of disclosure.
(b) Except in connection with any joint project between the Parties, the receiving Party shall not make any use of the disclosing Party’s Proprietary Information for its own benefit or for the benefit of any other individual, corporation or entity; for greater certainty, the filing of a patent application under the laws of any country by the receiving Parties based, directly or indirectly, on the disclosing Party’s Proprietary Information shall be strictly prohibited, and should any such patent application or patent registration occur in violation to this Agreement, all the rights of the receiving Parties on said patent application or patent registration shall be entirely conveyed to the disclosing Party, at no cost for the latter, and in addition to any other recourse for damage.
(c) The receiving Party shall not disclose all or any part of the disclosing Party’s Proprietary Information to any affiliates, agents, officers, directors, employees or representatives (collectively, “Representatives”) of the receiving Party except on a need-to-know basis. The receiving Party agrees to inform any of its Representatives who receive the disclosing Party’s Proprietary Information of the confidential and proprietary nature thereof and of such Representative’s obligations with respect to the maintenance of such Proprietary Information in conformance with the terms of this Agreement.
(d) The receiving Party shall use the same degree of care to protect the confidentiality of the Proprietary Information disclosed to it as it uses to protect its own Proprietary Information, but in all events shall use at least a reasonable degree of care. Each Party represents that such degree of care provides adequate protection for its own proprietary information.
(e) The receiving Party shall immediately advise the disclosing Party in writing of any misappropriation or misuse by any person of the disclosing Party’s Proprietary Information of which the receiving Party is aware.
(f) Any documents or materials that are furnished by or on behalf of the disclosing Party, and all other Proprietary Information in whatever form, including documents, reports, memoranda, notes, files or analyses prepared by or on behalf of the receiving Party, including all copies of such materials, shall be promptly returned by the receiving Party to the disclosing party upon written request by the disclosing Party for any reason.
ARTICLE III – NO LICENSES, WARRANTIES OR RIGHTS
No license to the receiving Party under any trade secrets or patents is granted or implied by conveying Proprietary Information or other information to such Party, and none of the information transmitted or exchanged shall constitute any representation, warranty, assurance, guaranty or inducement with respect to the infringement of patents or other rights of others. In addition, the disclosure of Proprietary Information by the disclosing Party shall not constitute or include any representation or warranty as to the accuracy or completeness of such information.
ARTICLE IV – REMEDY FOR BREACH
Each receiving Party acknowledges that the Proprietary Information of the disclosing Party is central to the disclosing Party’s business and was developed by or for the disclosing Party at a significant cost. Each receiving Party further acknowledges that damages would not be an adequate remedy for any breach of this Agreement by the receiving Party or its Representatives and that the disclosing Party may obtain injunctive or other equitable relief to remedy or prevent any breach or threatened breach of this Agreement by the receiving Party or any of its Representatives. Such remedy shall not be deemed to be the exclusive remedy for any such breach of this Agreement, but shall be in addition to all other remedies available at law or in equity to the disclosing Party.
ARTICLE V – NO SOLICITATION
Except the prior written consent of the other party, neither party, nor any of their respective Representatives, will solicit or cause to be solicited for employment any employee of the other party for the period of five (5) years from the date hereof. For the purposes of this section, solicitation shall not include solicitation of employees where such solicitation is solely through advertising in periodicals of general circulation or an employee search firm on behalf of a party or its Representatives, so long as the party or its Representatives did not direct or encourage such search firm to solicit a specifically named employee or the other party.
ARTICLE VII – MISCELLANEOUS
(a) This Agreement contains the entire understanding between the Parties and supersedes all prior written and oral understandings relating to the subject hereof. This Agreement may not be modified except by written agreement signed by both Parties.
(b) The construction, interpretation and performance of this Agreement, as well as the legal relations of the Parties arising hereunder, will be governed by and construed in accordance with the laws of Canada, without regard to the choice or conflict of law provisions thereof.
(c) It is understood and agreed that no failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof, or the exercise of any other right, power or privilege hereunder. No waiver of any terms or conditions of this Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition. All waivers must be in writing and signed by the party sought to be bound.
(d) If any part of this Agreement shall be held unenforceable, the remainder of this Agreement will nevertheless remain in full force and effect.
(e) The disclosure of Proprietary Information hereunder shall not be construed to obligate either of the Parties (i) to enter into any further agreement or negotiation with or make any further disclosure to the other Party hereto, (ii) to refrain from entering into any agreement or negotiation with any third person regarding the same subject matter or any other subject matter, or (iii) to refrain from pursuing its business in whatever manner it elects; provided, however, that in connection with pursuing efforts under subparagraphs (ii) and (iii), the receiving Party does not violate any of the provisions of this Agreement.
(f) Unless otherwise required by law, no public announcement may be made by either Party concerning this Agreement or the related discussions without the prior written approval of the other Party.
(g) The provisions of this Agreement are for the benefit of the Parties hereto and their permitted successors and assigns, and no third party may seek to enforce, or shall benefit from, these provisions.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written.