Non-Disclosure and Confidentiality Agreement
This Non-Disclosure and Confidentiality Agreement (this “Agreement”) is entered into as
of June 16, 2016 (the “Effective Date”) by and between The BIG Company, a Delaware
Corporation (“T.B.C”) and David Moore, as an Individual (“David”).
T.B.C and David have indicated an interest in exploring a potential business relationship
(the “Transaction”). In connection with its respective evaluation of the Transaction,
each party, their respective affiliates and their respective directors, officers, employees,
agents or advisors (collectively, “Representatives”) may provide or gain access to
certain confidential and proprietary information. A party disclosing its Confidential
Information to the other party is hereafter referred to as a “Disclosing Party.” A party
receiving the Confidential Information of a Disclosing Party is hereafter referred to as a
“Receiving Party.” In consideration for being furnished Confidential Information, T.B.C
and David agree as follows:
1. Confidential Information. The term “Confidential Information” as used in this
Agreement shall mean any data or information that is competitively sensitive material
and not generally known to the public, including, but not limited to, information relating
to
any
of
the
following:
product
development
and
plans, marketing
strategies, documentation, reports, data, databases, customer
lists, customer
relationships, customer profiles, business plans and internal performance results
relating to the past, present or future business activities, design, which the Disclosing
Party considers confidential.
2. Exclusions from Confidential Information. The obligation of confidentiality with
respect to Confidential Information will not apply to any information:
a.
If the information is or becomes publicly known and available other than
as a result of prior unauthorized disclosure by Receiving Party or any of its
Representatives;
b.
If the information is or was received by Receiving Party from a third party
source which, to the best knowledge of Receiving Party or its Representatives, is or was
not under a confidentiality obligation to Disclosing Party with regard to such
information;
c.
If the information is disclosed by Receiving Party with the Disclosing
Party’s prior written permission and approval;
d.
If the information is independently developed by Receiving Party prior to
disclosure by Disclosing Party and without the use and benefit of any of the Disclosing
Party’s Confidential Information; or
e.
If Receiving Party or any of its Representatives is legally compelled by
applicable law, by any court, governmental agency or regulatory authority or by
subpoena or discovery request in pending litigation but only if, to the extent lawful,
Receiving Party or its Representatives give prompt written notice of that fact to
Disclosing Party prior to disclosure so that Disclosing Party may request a protective
order or other remedy to prevent or limit such disclosure and in the absence of such

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protective order or other remedy, Receiving Party or its Representatives may disclose
only such portion of the Confidential Information which it is legally obligated to disclose.
3. Obligation to Maintain Confidentiality. With respect to Confidential Information:
a.
Receiving Party and its Representatives agree to retain the Confidential
Information of the Disclosing Party in strict confidence, to protect the security, integrity
and confidentiality of such information and to not permit unauthorized access to or
unauthorized use, disclosure, publication or dissemination of Confidential Information
except in conformity with this Agreement;
b.
Receiving Party and its Representatives shall adopt and/or maintain
security processes and procedures to safeguard the confidentiality of all Confidential
Information received by Disclosing Party using a reasonable degree of care, but not less
than that degree of care used in safeguarding its own similar information or material;
c.
Upon the termination of this Agreement, Receiving Party will ensure that
all documents, memoranda, notes and other writings or electronic records prepared by it
that include or reflect any Confidential Information are returned or destroyed as directed
by Disclosing Party;
d.
If there is an unauthorized disclosure or loss of any of the Confidential
Information by Receiving Party or any of its Representatives, Receiving Party will
promptly, at its own expense, notify Disclosing Party in writing and take all actions as
may be necessary or reasonably requested by Disclosing Party to minimize any
damage to the Disclosing Party or a third party as a result of the disclosure or loss; and
e.
The obligation not to disclose Confidential Information shall remain in
effect until 5 years from the date hereof or until the Confidential Information ceases to
be a trade secret, except to the extent that such Confidential Information is excluded
from the obligations of confidentiality under this Agreement pursuant to Paragraph 2
above.
4. Non-Disclosure of Transaction. Without Disclosing Party’s prior written consent,
neither Receiving Party nor its Representatives shall disclose to any other person,
except to the extent, the provisions of Paragraph 2 apply: (a) the fact that Confidential
Information has been made available to it or that it has inspected any portion of the
Confidential Information; (b) the fact that Disclosing Party and Receiving Party are
having discussions or negotiation concerning the Transaction; or (c) any of the terms,
conditions or other facts with respect to the Transaction.
5. Representatives. Receiving Party will take reasonable steps to ensure that its
Representatives adhere to the terms of this Agreement. Receiving Party will be
responsible for any breach of this Agreement by any of its Representatives.
6. Disclaimer. There is no representation or warranty, express or implied, made by
Disclosing Party as to the accuracy or completeness of any of its Confidential
Information. Except for the matters set forth in this Agreement, neither party will be
under any obligation with regard to the Transaction. Either party may, in its sole
discretion: (a) reject any proposals made by the other party or its Representatives with

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respect to the Transaction; (b) terminate discussions and negotiations with the other
party or its Representatives at any time and for any reason or for no reason; and (c)
change the procedures relating to the consideration of the Transaction at any time
without prior notice to the other party.
7. Remedies. Each party agrees that use or disclosure of any Confidential Information
in a manner inconsistent with this Agreement will give rise to irreparable injury for which:
(a) money damages may not be a sufficient remedy for any breach of this Agreement by
such party; (b) the other party may be entitled to specific performance and injunction
and other equitable relief with respect to any such breach; (c) such remedies will not be
the exclusive remedies for any such breach, but will be in addition to all other remedies
available at law or in equity; and (d) in the event of litigation relating to this Agreement, if
a court of competent jurisdiction determines in a final non-appealable order that one
party, or any of its Representatives, has breached this Agreement, such party will be
liable for reasonable legal fees and expenses incurred by the other party in connection
with such litigation, including, but not limited to, any appeals.
8. Notices. All notices given under this Agreement must be in writing. A notice is
effective upon receipt and shall be sent via one of the following methods: delivery in
person, overnight courier service, certified or registered mail, postage prepaid, return
receipt requested, addressed to the party to be notified at the below address or by
facsimile at the below facsimile number or in the case of either party, to such other
party, address or facsimile number as such party may designate upon reasonable
notice to the other party.
The BIG Company
Taylor Johnson, Marketing Director
123 Montpillier Ave
Chicago , DE 2222222
Phone number: (222) 222-2222
Fax number: (222) 222-2222
David Moore
123 Casual Road
Chicago, DE 222222222
Phone number: (222) 222-2222
Fax number: (222) 222-2222
9. Termination. This Agreement will terminate on the earlier of: (a) the written
agreement of the parties to terminate this Agreement; (b) the consummation of the
Transaction; or (c) 5 years from the date hereof.
10. Amendment. This Agreement may be amended or modified only by a written
agreement signed by both of the parties.

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11. Jurisdiction. This Agreement will be governed by and construed in accordance
with the laws of the State of Delaware, without regard to the principles of conflict of
laws. Each party consents to the exclusive jurisdiction of the courts located in the State
of Delaware for any legal action, suit or proceeding arising out of or in connection with
this Agreement. Each party further waives any objection to the laying of venue for any
such suit, action or proceeding in such courts.
12. Miscellaneous. This Agreement will inure to the benefit of and be binding on the
respective successors and permitted assigns of the parties. Neither party may assign its
rights or delegate its duties under this Agreement without the other party’s prior written
consent. In the event that any provision of this Agreement is held to be invalid, illegal or
unenforceable in whole or in part, the remaining provisions shall not be affected and
shall continue to be valid, legal and enforceable as though the invalid, illegal or
unenforceable parts had not been included in this Agreement. Neither party will be
charged with any waiver of any provision of this Agreement, unless such waiver is
evidenced by a writing signed by the party and any such waiver will be limited to the
terms of such writing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
The BIG Company
By: __________________________
Name: Taylor Johnson
Title: Marketing Director
David Moore
By: __________________________

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Non-Disclosure and Confidentiality Agreement (Rev. 1337B55)

GENERAL INSTRUCTIONS

2. What is
Information”)

Confidentiality Agreements or NDA (NonDisclosure Agreements) are commonly used
when one or both parties have valuable
information. In order to turn that great idea
into cash flow, both parties want to explore a
possible
collaboration
or
business
relationship.

Any data or information that is private, secret,
sensitive, or valuable will be protected.
Confidential information can include: proprietary
information, trade secrets, unpublished patent
applications, financial information, marketing
materials, tangible and intangible information,
written and verbal representations and
communications, etc.

WHAT
IS
A
AGREEMENT?

NON

DISCLOSURE

Protected?

(the

“Confidential

3. For how long is everyone on the hook? (the
“Effective Date” and “Disclosure Period”)

A Confidentiality Agreement or NDA is a
written document that officially recognizes a
legally binding relationship between two
parties — a Disclosing Party and a Receiving
Party. Both parties understand the information
is sensitive, technical, or nonpublic and is
valuable for commercial or other purposes.

The Confidentiality Agreement or NDA should
also spell out when the promises to protect
information begin (the “Effective Date”) and for
how long the protected information must not be
share with others (the “Disclosure Period”).

Further, the two parties promise that they will
not use or disclose the protected information
with anyone else as they discuss and explore
the possibility of entering into a business
relationship with each other.

Usually the parties agree to when
Confidentiality Agreement or NDA will end
“Termination” provision). For example,
Agreement could terminate whenever
Agreement expires, the Transaction
completed; or a specific amount of time
passed.

the
(the
the
the
is
has

4. Where the
“Jurisdiction”)

(the

A simple Confidentiality Agreement or NDA
will identify the following basic elements: The
“Effective Date”, The “Transaction”, The
“Confidential Information”, The “Disclosing
Party”,
The
“Receiving
Party”,
The
“Representatives”.
WHAT SHOULD BE INCLUDED?
A simple NDA should generally have at least
the following:
1. Who is on the hook? (the “Parties”)
The Disclosing Party, either a person or a
company, usually has valuable information
that they want to share with the Receiving
Party in order to explore a potentially fruitful
business relationship (i.e. the “Transaction”).
Both parties should sign and date the
Confidentiality Agreement or NDA for it to
become a legally binding document.

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applies?

If a problem grows into a lawsuit, the parties
should agree that the laws of one state apply. In
other words, both parties consent to appear in a
specific state.
It is important to know that some states like
California encourage employees to be
entrepreneurial so the laws there disfavor noncompete clauses (also known as a “covenant not
to compete” or CNC) and employer NDAs that
restrict an employee’s mobility after leaving one
company.
5. What other details should be included in a
Confidentiality Agreement or NDA?
A Confidentiality Agreement or NDA may also
cover useful details such as : Disclaimer, No
License, Non-Disclosure, Obligations, No
Obligation, Remedies, Notice.

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