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Free sample non-disclosure agreement to use when doing business in China

A Non Disclosure Agreement is an agreement under which a party (the "Recipient") agrees not to disclose proprietary and confidential information ("Confidential Information") that it receives from another party (the "Owner"). When you plan to do business with Chinese partner, it's essential to enter into a non-disclosure agreement with the Chinese supplier and buyer. As a experienced China lawyer, I strongly recommend you to do so, in light of plenty of international business disputes arising from Chinese business bodies with foreigners and companies. This type of agreement may be useful in a variety of circumstances. For example, a company might choose to share information with a web marketing consultant for the purpose improving its on-line sales through its web site. In such a situation, the company would probably be sharing product and customer information with the marketing consultant and would want to protect this information from disclosure by the consultant to third parties.

Some typical provisions that are included for the protection of the Owner include the following:

No Warranty. There is a possibility that the Confidential Information could contain mistakes or errors, or be based on assumptions that later prove to be incorrect. Therefore, it is common for Owners to include a "no warranty" provision that specifies that the Owner will not be responsible for any damages that the Recipient might incur from using the Confidential Information.

Risk of Disclosure. In addition to the "No Warranty" provision, the Owner may also want to provide that any disclosure made by the Recipient of any information is at the Recipient's risk. Because the Owner has already stated that it will not warrant the accuracy of the information, the Owner can further provide that the Recipient will bear the risk of using the information in violation of the agreement. For example, if the Recipient acts on some of the information and the information was inaccurate, the Recipient cannot hold the Owner responsible for the harm caused by the inaccurate information.

Limited License. Generally, the Owner and the Recipient intend that the Confidential Information will only be used by the Recipient for the limited purpose of reviewing the information and becoming familiar with the Owner's business to determine whether the parties might have interest in future transactions (based on some additional agreement). A "limited license" provision makes it clear that the Recipient is not acquiring the right to use the Confidential Information on a general basis.

General Provisions. A Non Disclosure Agreement should include provisions that (i) require amendments (changes) to the agreement to be in writing and signed by both parties, (ii) specify the state whose laws will govern and interpret disputes between the parties regarding the matters covered by the agreement, and (iii) prohibit the parties from assigning their obligations under the agreement to third parties. Generally, the state whose laws should govern the agreement should be the state of the Owner or the Recipient.

The following is a well-drafted non-disclosure agreement that you can use in China:

You should modify this NDA to fit your own needs. It may not be perfect, and I'm not a lawyer! So, with these disclaimers in mind, use at your own risk. This was copied from an NDA I signed to look at someone else's game.

NON DISCLOSURE AGREEMENT

This Non-Disclosure Agreement (hereinafter "Agreement") by and between ____________________________residing at___________________________________________ (hereinafter_________) and _____________________________ residing at _________________________ ________________________________________(hereinafter_________), is entered into to provide for the confidentiality, protection and handling of Proprietary Information related to a (CARD/BOARD) game to be known as _______________________________________ for the purpose of examination, printing, reproduction, editing, playtesting, or consideration for publication (hereinafter "Purpose").

_______________and ______________are also hereinafter individually referred to as the "Party" or "the disclosing party" or the "recipient" or collectively as the "Parties".

1. The term "Proprietary Information" means any and all information, in any form, whether of a technical or commercial nature, relating to the Purpose which is disclosed prior or subsequent to the date of this Agreement by the disclosing party to the recipient and identified by the disclosing party at the time of disclosure as being proprietary. Information disclosed in a form other than writing shall be confirmed in writing by the disclosing party as being proprietary within thirty (30) days of disclosure.

2. Proprietary Information shall not include information which, at the date of signature hereof, or thereafter becomes public domain, is known to the recipient prior to being disclosed by the disclosing party, in which case the recipient will notify to the disclosing party within 7 days that the information was already known prior to disclosure, is developed independently by the recipient, or is legally obtained by the recipient at any time from other sources who are not subject to proprietary restrictions. The recipient shall have the burden of proof in establishing any of the above mentioned exceptions.

3. The recipient agrees to use the Proprietary Information solely for the mutual benefit of parties in furtherance of the above stated Purpose, as specifically approved by the disclosing party, and agrees not to disclose the Proprietary Information to any third party or to any of its affiliates, employees or agents except as may be required to conduct the above mentioned Purpose. Any such disclosure to third parties shall be subject to the prior written consent of the disclosing party and shall be conditioned upon obtaining in advance a non-disclosure Agreement substantially in the form of this Agreement.

4. The recipient agrees to retain the Proprietary Information of the disclosing party in confidence and to exercise towards it at least the same degree of care and protection that it takes to safeguard its own Proprietary Information.

5. The Proprietary Information of each party, or any part thereof, whether capable of being copyrighted, patented, or otherwise registered at law, or not, is for the purposes of this Agreement acknowledged by the recipient as being the sole property of the disclosing party.

6. Nothing in this Agreement shall be construed as granting to the recipient any rights by license or otherwise, express or implied, to or in any of the disclosing party's patents, non-patented inventions or other intellectual property. No representation or warranty is made by the disclosing party with respect to information disclosed.

7. This Agreement shall remain in force and effect throughout the period in which the recipient is actively engaged in the execution of the Purpose and for a period of Ten (10) years thereafter.

8. Promptly upon the termination of this Agreement, unless otherwise agreed in writing by both parties, each party shall return to the other all Proprietary Information of the other party that it has received or that is in its possession, together with all copies thereof, and will immediately cease to make further use or disclosure of such Proprietary Information.

9. Nothing herein (including the exchange of Proprietary Information hereunder) shall be deemed as obligating the parties to enter into any business relationship with respect to the Project or otherwise.

10. Each Party shall fully indemnify the other against any and all actions, claims, liability, costs, damages, charges and expenses suffered or incurred in connection with or arising out of any breach by a Party of any of the provisions of this Agreement or by any unauthorized disclosure or use of Proprietary Information by a third party or by any employee of any party to whom Proprietary Information has been disclosed or who has been allowed access thereto and acknowledges and confirms that a breach of its obligations hereunder cannot be compensated adequately by an award of damages or indemnity or other pecuniary remedy but the other Party shall also be entitled in the event of any such breach to the remedies of injunction specific performance or other equitable relief in respect of any such breach. Nothing in this Clause 10 shall be construed as a waiver by either Party of any of its rights including rights to damages or indemnity or other pecuniary remedy.

11. This Agreement shall be governed by and construed in accordance with the laws of _______________ and The United States and any dispute arising under or in connection herewith shall be presented in and determined by these courts exclusively.

IN WITNESS WHEREOF: this Agreement has been signed by each of the Parties hereto.

For and on behalf of__________________________

Name : ............................... Date:

Signature:

For and on behalf of __________________________

Name: ............................... Date:

Signature:

 
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