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NDA for (Overseas) Developer

7 mins read
Photo by Mikhail Nilov on Pexels.com

Suppose, you are looking to hire an Indian (or Russian or US, it doesn’t matter) development company to develop an app for you. Before sharing your unique app idea, specifications, business practices and other confidential information, it’s a good idea to have them sign an NDA that ensures:

– Confidential Information can only be used as required to accomplish the purpose of the agreement;
– Developer is liable for its employees, consultants and associates if they breach the NDA;

– In case there are any leaks, Developer has to prove by written evidence if that the use of your information was lawful;

– Developer cannot attempt to “steal” your employees, customers or consultants;
 – All disputes must be resolved in your state, so you don’t have to try to sue in a foreign jurisdiction;
– English language prevails in case there are any discrepancies between any foreign language translation of the NDA.
The template below is drafted to accomplish the aforementioned purposes.
CONFIDENTIALITY and NON- SOLICITATION
AGREEMENT
This Agreement is made as of the _____ day of ________________, 2018 (the “Effective Date”), by and between the undersigned Parties who hereby agree as follows:
1.         DEFINITIONS.
a)     Disclosing Party: ________[Company name]_____, having its principal place of  business at _______________[address]____________.
b)     Receiving Party: ______[insert Developer’s company name]_________________, having its principal place of  business at _______________[address]____________.
c)     Purpose.  The Disclosing Party will share its Confidential Information with the Receiving Party for the Purpose of allowing the Receiving Party to furnish a quote for the development of an app for the Disclosing Party.
d)     “Confidential Information”shall mean all information furnished by the Disclosing Party or its Representatives (defined below) to the Receiving Party or its Representatives, whether orally, in writing, electronically or in other form, and identified as confidential or proprietary at the time of disclosure by the Disclosing Party or otherwise disclosed in a manner such that a reasonable person would understand its confidential nature, including but not limited to, information that is related to: (a) app specifications, functionality, inventions (whether patented or not); (b) the research, development and processes of the Disclosing Party; (c) the business plans or operations of the Disclosing Party;  (d) the business of any customer or partner of the Disclosing Party; (e) Disclosing Party’s properties, employees, finances, operations; (f) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, trade secrets, know-how, improvements, marketing plans, forecasts and strategies.  “Confidential Information” shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents prepared by the Receiving Party or its Representatives which contain or are based upon, in whole or in part, the information furnished to the Receiving Party or its Representatives by the Disclosing Party.
 
2.         PERMITTED USE. Confidential Information can only be used as required to accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the Disclosing Party shall remain the property of the Disclosing Party. The Receiving Party: (a) shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its Representatives who are actively and directly participating in the Purpose or who otherwise need to know the Confidential Information for the Purpose; (c) shall not use Confidential Information for any purpose other than in connection with the Purpose. and (d) shall not disclose to any person (other than those of its Representatives who are actively and directly participating in the Purpose or who otherwise need to know for the Purpose) any information about the Purpose, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the Receiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. As used herein. “Representatives” shall mean (i) employees, consultants, partners and associates of the Receiving Party; (ii) attorneys, accountants, or other professional business advisors and, additionally, (iii) employees of the Receiving Party and those entities directly or indirectly owned by the Receiving Party, in each case, who shall be informed of the confidential nature of the Confidential Information and shall agree to act in accordance with the terms of this Agreement. The Receiving Party shall be responsible for any breach of the terms of this Agreement by it or its Representatives.
 
3.         EXCEPTIONS. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to it free of restriction; or (d) the Disclosing Party agrees in writing is free of such restrictions. The Receiving Party shall have the burden of proving (by written evidence) that any of the aforementioned exceptions exist/apply.
 
4.         TERM. This Agreement takes effect on the Effective Date, and continues in force for five years.
 
5.         NON-SOLICITATION.  The Receiving Party agrees that, for the Term of this Agreement and for three (3) years thereafter, the Receiving Party will not, either directly or indirectly, solicit or attempt to solicit any client, lead, employee or consultant of the Disclosing Party.
 
6.         GENERAL PROVISIONS.
a)  Governing Law.  This Agreement and any action related thereto will be governed and interpreted by and under the laws of [your state], without giving effect to any conflicts of laws principles that require the application of the law of a different state.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the courts located in [your state], and the parties consent to the personal jurisdiction and venue therein.
b)  Severability.  If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
c)  Survival.  This Agreement shall survive the termination of my engagement and the assignment of this Agreement by Finder to any successor or other assignee and shall be binding upon my heirs and legal representatives.
d)  Notices.  Each Party must deliver all notices or other communications required or permitted under this Agreement in writing to the other Party at the address listed on the signature page, by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service.  Notice will be effective upon receipt or refusal of delivery.  If delivered by certified or registered mail, notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark.  If delivered by courier or express mail service, notice will be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each Party may change its address for receipt of notice by giving notice of the change to the other Party.
e)  Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of that provision or any other provision on any other occasion.
f)   Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
        
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement.
RECEIVING PARTY                                                                 DISCLOSING PARTY
                                                                                                                 
(Signature)
By: ___________________________________________     
Title: __________________________________________    
Date: _____________________________________               
                                                                                                                 
(Signature)
By: _________________________________________         
Title: _________________________________________       
Date: ____________________________________                  

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